Judgment P.K.Deb and D.P.S.Choudhary JJ. 1. This appeal has been preferred by the above-named convict appellant against the judgment and order dated 12-9-1989 passed by the then Sessions Judge, Santhal Parganas, Dumka, in Sessions Case No. 176 of 1988 whereby and whereunder the accused-appellant Binoy Chandra Gorain has been convicted under Section 302 of the IPC for committing murder of his wife Adori Rani Gorain and sentenced to rigorous imprisonment for life. He was further convicted under Section 307 of the IPC for attempting to commit murder of his daughter Kalyani Kumari (PW-2) and sentenced rigorous imprisonment for ten years. The appeal was preferred from jail and by order of a Division Bench of this Court dated 29-11-1989 Mr. Satyendra Kumar Sinha was appoint-ed as amicus curiae for and on behalf of the appellant. Today when this appeal came up for hearing Mr. Manoj Kumar Ambastha, advocate, submitted that Mr. Satyendra Kumar Sinha is ailing for long time and he is not coming to Court and he has asked Mr. Manoj Kumar Ambastha to argue the case for and on behalf of the accused-appellant with the leave of this Court. Leave was granted and the appeal has been heard in presence of the State Counsel. 2. The facts of the case run as follows. The accused-appellant Binoy Chandra Gorain was serving outside his village but for the last two years since the date of occurrence he was having no employment and came there to reside with his family consisting of wife, one daughter Kalyani Kumari and one son Ranjit Kumar. He had no income of his own and he was totally dependent on his wife who used to some how manage the family by doing labour work. Because of poverty, there was constant quarrel between the husband and wife and it has come in evidence that the accused-appellant used to beat his wife of and on. In the meantime, also the accused-appellant met, with an accident as a result of which his one leg was fractured. In the night of 30-12-1987 the accused-appellant was sleeping in a room adjacent to room where his wife was sleeping with their daughter Kalyani Kumari Gorain and son Ranjit Kumar. In the night at about 11.30 p.m. Kalyani Kumari Gorain rose up when she was given a dagger blow by her father the accused-appellant. In the night of 30-12-1987 the accused-appellant was sleeping in a room adjacent to room where his wife was sleeping with their daughter Kalyani Kumari Gorain and son Ranjit Kumar. In the night at about 11.30 p.m. Kalyani Kumari Gorain rose up when she was given a dagger blow by her father the accused-appellant. She raised alarm and then her brother Ranjit also raised alarm. As result of which the elder brother of the accused-appellant, namely, Vupendra Nath Gorain and his wife Jamuna Bala Gorain came to the spot. It was found that Adori Rani Gorain, the wife of the accused-appellant was lying in the pool of blood in the adjacent room while Kalyani Gorain was inside the other room having injuries on her neck. The accused-appellant also inflicted blows on his abdomen and other places and was also lying in the pool of blood. He was having the dagger in his hand which was some how snatched by the brother and brothers wife of the accused-appellant. Pradip Kumar Gorain, who happens to be the son of Vupendra Nath Gorain, then went to inform the village Chowkidar Nunulal Mirdha. He came and then along with Pradeep Kumar Gorain/Kalyani left for Police Station, namely, Jama Police Station which is about 70 kilometres away towards south-east of the place of occurrence which is at village Pargadih. The information was lodged by the village Chowkidar Nunulal Mirdha (PW-5) on the next day, i.e., on 31-12-1987 at 9 a.m. He gave a vivid discription in his fardbeyan about the whole of the occurrence and the same fardbeyan was being endorsed both by Pradeep Kumar Gorain (PW-7) and Kalyani Kumari Gorain (PW-2). The Police came to except the spot, arrested the accusd-appellant and then sent him for treatment as he was also injured. Kalyani Kumari Gorain was also sent for medical examination and treatment. The blood-stained earth. and the dagger were seized at the spot itself. The dead body of Adori Rani Gorain was sent for post-mortem examination and after closure of investigation charge-sheet was submitted under Sections 302/307 of the IPC. 3. On being committing to the Court of Session charges were framed under the said Sections of the Indian Penal Code and when the same was read over and explained to the accused he pleaded not guilty. 4. 3. On being committing to the Court of Session charges were framed under the said Sections of the Indian Penal Code and when the same was read over and explained to the accused he pleaded not guilty. 4. The defence case as is found from the cross-examination of the witnesses is that the accused-appellant at the time of occurrence was suffering from mental depression in the from of insanity and as such protection was sought for as contemplated under Section 84 of the IPC. But, during the course of examination under Section 313 of the Code of Criminal Procedure the accused-appellant took a plea that the offence was committed by his elder brother Vupendra Nath Gorain (PW-3) and he has been falsely implicated in the case. According to the accused-appellant, he had land dispute with his elder brother (PW-3). Vupendra Nath Gorain and that was the genesis for committing the offence by (PW-3). In respect of such a defence case no evidence has been adduced from the side of the accused-appellant. 5. For and on behalf of the prosecution as many as nine witnesses have been examined. (PW-1) Dr. Indra Kant Mishra is the doctor who held post-mortem examination over the dead body of Adori Rani Gorain and according to him, death was caused due to the injuries inflicted on the vital part of the body by sharp-cutting weapon (PW-2) Kalyani Kumari Gorain is the daughter of the accused-appellant and the deceased Adori Rani Gorain. She is the star witness of the prosecution and she herself was also injured in the incident. (PW-3) Vupendra Nath Gorain is the elder brother of the accused-appellant. (PW-4) Jamunabala Gorain is the wife of (PW-3). Both these witnesses came to the place of occurrence on hearing hue and cry raised by (PW-2) Kalyani Kumari Gorain and her brother Ranjit Kumar. (PW-5) Nunulal Mirdha is the Informant in the case and the village Chowkidar. He came to the spot after the occurrence on being informed of the same by the son of (PW-3),(PW-6) Bipin Bihari Gorain another brother of the accused-appellant who had his house in the same neighbourhood. He has just been tendered. (PW-7) Pradeep Kumar Gorain also came to the place of occurrence along with his parents on hearing hulla and he went to inform the Chowkidar (PW-5) and then accompanied him to the Police Station for lodging information. (PW-8) Dr. He has just been tendered. (PW-7) Pradeep Kumar Gorain also came to the place of occurrence along with his parents on hearing hulla and he went to inform the Chowkidar (PW-5) and then accompanied him to the Police Station for lodging information. (PW-8) Dr. I. P. Mandal is the doctor who examined the injuries on the persons of (PW-2) Kalyani Kumari Gorain and also the accused-appellant. (PW-9) Balmiki Kumar is the Investigating Officer. 6. The prosecution case is based on two types of evidence, namely, eye-witness with regard to charge under Section 307 of the IPC and circumstances with regard to the charges under Section 302 of the IPC together with extra-judicial confession alleged to be made by the accused-appellant in presence of (PW-3) and (PW-4). After considering the evidence on record the learned Sessions Judge held that the prosecution could be able to prove the guilty of the accused-appellant beyond all reasonable doubts and he disbelieved both the versions of the defence regarding insanity of the accused-appellant at the relevant time of occurrence and that the offence was committed not by the accused-appellant but by the elder brother Vupendra Nath Gorain. Regarding the charge under Section 307 of the IPC, there is direct evidence by (PW-2) Kalyani Kumari Gorain who herself was injured in the hands of her father. There is no reason to disbelieve her as he is not only the injured but also she had deposed against her own father. As regards, the offence under Section 302 of the IPC, although there is no direct eye-witness to the occurrence but the circumstance in which the offence has been committed as depicted by (PW-2) fingers to one and only conclusion that it must be the accused-appellant who had committed the crime. Besides that circumstance, there is also evidence with regard to the extra-judicial confession. The same has been supported by (PW-3) and (PW-4) and they made such statement in their statements under Section 161 of the Code of Criminal Procedure before the Investigating Officer also. 7. Besides that circumstance, there is also evidence with regard to the extra-judicial confession. The same has been supported by (PW-3) and (PW-4) and they made such statement in their statements under Section 161 of the Code of Criminal Procedure before the Investigating Officer also. 7. It has been strenuously argued for and on behalf of the accused-appellant that such fact of extra-judicial confession had never been put to be accused-appellant while regarding his statement under Section 313 of the Code of Criminal Procedure and when such vital fact has not been put to the accused-appellant and did not give any opportunity to explain then such evidence ought not to be taken into consideration otherwise grave injustice would be caused to the accused-appellant. In this connection, learned Counsel has referred to the reported judgment of Allahabad High Court in Ashish V/s. D. C. Tewari, 1970 Cr LJ 670. On proper scrutiny of the statement recorded under Section 313 of the Code of Criminal Procedure, it could be found that the fact of extra-judicial confession had never been put to the accused-appellant. But regarding that extra-judicial confession when being deposed by the witnesses, namely, (PW-3) and (PW-4) no denial has been made while cross-examining them. As I have already stated that at that time practically the accused-appellant had admitted the position that he had killed his wife and injured his daughter and as such took the plea of insanity. Leaving aside that portion of evidence of the prosecution for arguments sake regarding extra-judicial confession that is also circumstances, as I have already stated, finger towards the guilty of the accused-appellant alone. The occurrence took place in the close house at mid-night. It appears that no other elder members were inside the house except the accused-appellant and the deceased. When the accused-appellant assaulted Kalyani Kumari and she received dagger blow in the hands of her father then she had seen that her mother was not there and she categorically stated that her mother was killed by the accused-appellant and none else. Such circumstances, even if, there is no actual eye-witness to the occurrence are sufficient enough to hold that it was the accused-appellant who had assaulted his wife to death. Such circumstances, even if, there is no actual eye-witness to the occurrence are sufficient enough to hold that it was the accused-appellant who had assaulted his wife to death. Thus, on scrutiny of the evidence on record independenly we come to the finding that the accused-appellant had assaulted his wife Adori Rani Gorain to death and attempted to kill his daughter Kalyani Kumari and then he wanted to finish himself by self-infliction of dagger blows on two vital parts of his body. On independent scrutiny of the evidence, we come to the same finding as held by the learned Court below as mentioned above. 8. Now regarding conviction under Section 307 of the IPC, there is nothing to be interfered as it could be found that the dagger blow was given to (PW-2) Kalyani Kumari on her neck by the accused-appellant and definitely such blow was given with attempt to commit her murder. But as regards conviction under Section 302 of the IPC, the background of the case should be considered. It has come in evidence that the accused-appellant was unemployed for a long time and he was dependent on his wifes earning. There was constant quarrel between the spouses and definitely such quarrel had direct relation with the poverty. It has also come in evidence that the accused-appellant in the midst of quarrel used to heat his wife off and on. In that condition, the accused-appellant had another blow on his fate when he met with a truck accident causing injuries on his leg making him disabled and there remained no chance of his re-employment for earning livelihood for his family. During the course of making so-called extra-judicial confession the accused-appellant stated that he got enraged as his wife denied to serve night meal on the night of occurrence. These circumstances show that the accused-appellant was suffering from extreme mental depression and perhaps as a last resort he thought to finish the whole family including himself to get rid of the pangs of starvation. But in the process he could be caught and as such his so called contemplation could not be fulfilled. These circumstances show that the accused-appellant was suffering from extreme mental depression and perhaps as a last resort he thought to finish the whole family including himself to get rid of the pangs of starvation. But in the process he could be caught and as such his so called contemplation could not be fulfilled. In such circumstances, although the murder was caused by the accused-appellant of his wife but in the background of the history, as mentioned above, it is felt that ends of justice require that the accused-appellant should be convicted only under Section 304 Part-I of the Indian Penal Code and not under Section 302 of the Indian Penal Code. The accused-appellant has remained in custody for long eleven and half years by this time. The sentence imposed under Section 307 of the Indian Penal Code has already been served and elapsed. The sentence with regard to conviction under Section 304 Part-I which is converted from Section 302 of the Indian Penal Code would be sufficient if the accused-appellant is allowed to be let off with the punishment of the period undergone. Thus, the appeal is rejected with the modification in the sentence under Section 302 of the Indian Penal Code by converting it to Part-I of Section 304 of the Indian Penal Code and minimising the sentence to the period undergone. The conviction and sentence under Section 307 of the Indian Penal Code is hereby upheld and confirmed. 9. Before parting with the records, we must record the words of apreciation to Mr. Ambastha who has taken much strains in preparing for arguing the case for and on behalf of the accused-appellant. 10. The accused-appellant should be released forthwith. The information should be sent through fax to the Court below. 11. A copy of the judgment may be made over to Mr. Ambastha who has appeared amicus curiae for and on behalf of the appellant.