G. C. DE, J. ( 1 ) THIS appeal is directed against the judgment and order of conviction dated 26-9-96 and the sentence dated 27-9-96 of the 2nd Court of Additional sessions Judge, Jalpaiguri in Sessions Case No. 37 of 96 in Sessions Trial No. 29 of 1996 arising out of Mutelli P. S. Case No. 10/95 dated 12-2-95 on the basis of which G. R. Case No. 144 of 1995 was started. ( 2 ) BY the said judgment the learned Additional sessions Judge found the accused jerka Munda guilty under Section 302 of i. PC. , convicted him thereunder and sentenced him to suffer R. I. for life. ( 3 ) PROSECUTION case in brief is that on getting telephonic message Police Force went to Engo Tea Garden on 12-2-95, asked Jerka munda to come out from the room and he was caught as soon as he came out. On entering into the kitchen of Jerka Munda dead body of his wife Sukro Munda was recovered. It was noticed that there were bleeding injuries on the head and belly of the victim. One bloodstained Tangi and knife were lying near the dead body and those were recovered and seized on the basis of seizure list in presence of witnesses. One Ratia munda handed over a written complaint to the Police Officer who sent it to the police station for starting a case under Section 302 of I. P. C. The case was investigated by the police. Witnesses were examined. Report of post-mortem examination was collected along with the Serological report and ultimately charge-sheet was filed against Jerka munda under Section 302 of I. P. C. ( 4 ) THE case was committed to the Court of Sessions where charge under Section 302 of I. P. C. was framed. Since the accused pleaded not guilty to the charge, prosecu tion examined eight witnesses including the investigating Officer (P. W. 8), and Autopsy surgeon was examined as a Court witness under Section 311 of Cr. P. C. No defence evidence was adduced. After analysing the evidence on record the trial Court came to the conclusion that the charge against the accused was proved and accordingly the accused was convicted and sentenced in the manner indicated hereinabove. P. C. No defence evidence was adduced. After analysing the evidence on record the trial Court came to the conclusion that the charge against the accused was proved and accordingly the accused was convicted and sentenced in the manner indicated hereinabove. ( 5 ) THE convict Jerka Munda filed the Jail appeal on 30-10-96, through the Superintendent of Berhampore Central Jail, murshidabad and after filing of the appeal the Division Bench of this Court issued direction to the Public Prosecutior to engage an Advocate from the State Panel for representing the appellant at the cost of the State. However, in course of hearing of this appeal sri Partha Sarathi Bhattacharyya, learned advocate filed a vokalatnama on behalf of the convict and he argued the case on behalf of the appellant. ( 6 ) THE main contention of Mr. Bhattacharyya is that neither the investigation was properly done nor the trial of the case was properly conducted. It is also pointed out that the accused being a poor person, a learned Counsel was appointed at the cost of the State for the defence of the accused but, unfortunately the learned counsel in defence did not perform his duties properly. Analysing the evidence of the witnesses examined, Mr. Bhattacharyya further contended that there has been no eye-witness who actually saw Jerka Munda killing his wife Sukra Munda. So, it was incumbent upon the trial Court to consider the circum stances in its proper perspective for assessing the part played by the accused in the alleged offence. As regards the circumstances, Mr. Bhattacharyya pointed out that sitaram Oraon who was sharing the quarter of Jerka Munda was present in the same quarter at the time of the alleged offence but, on examination the P. W. 4 Sitaram did not explain as to how and why Sukra was killed. ( 7 ) MR. Bhattacharyya also points out the evidence of the minor daughter of the victim i. e. Anita Munda (P. W. 3) to show that jerka did not like gossiping of Sitaram and sukra, for which on many occasions the victim was rebuked. So, Mr. Bhattacharyya tried to indicate that murder, if any, was caused on certain provocation for which the offence cannot be construed to be an offence under Section 302 of I. P. C. ( 8 ) MR. So, Mr. Bhattacharyya tried to indicate that murder, if any, was caused on certain provocation for which the offence cannot be construed to be an offence under Section 302 of I. P. C. ( 8 ) MR. Bhattacharyya of course made a forceful argument alleging that actually the murder of Sukra at the hand of the accused has not been established in this case, and from the evidence of the autopsy surgeon (P. W. 6) when there is indication of the possibility of presence of two persons at the time of assault, the benefit of doubt must go in favour of the accused person and as such, on the basis of such benefit the accused may be acquitted. ( 9 ) MR. P. K. Roy, learned counsel on behalf of the State, however, contended that the murder of Sukra at the hand of Jerka has been established beyond reasonable doubt and as such, it cannot be said that the accused should be acquitted with the aid of benefit of doubt. It is further contended that extra judicial confession of the accused before arrival of the police and the threat of killing of others if anybody ventured to enter into his house are sufficient to indicate that the murder was committed by Jerka. Of course, Mr. Roy was fair enough to point out that the defence Counsel in the trial Court did not handle the case properly and though there are certain indications about disliking of the accused on the mixing of Sitaram and Sukra, proper attempt was not taken for its clarification for the reasons best known to the said defence Counsel. So, Mr. Roy, left the entire matter at the discretion of this Court for consideration as to whether the killing of Sukra was due to certain provocation or not? ( 10 ) P. W. 1 Sulve Oraon claimed that he heard the hue and cry when Sitaram told him that Jerka murdered his wife. On getting this information from Sitaram, P. W. 1 along with Gopal (P. W. 2) one Ashit who died after filing of the charge-sheet, Ratia (P. W. 5)reached the house of the accused when police men also arrived, and Sitaram was also present. At that time it was noticed that jerka was present and his wife Sukra with bleeding injuries on head and belly was lying dead. At that time it was noticed that jerka was present and his wife Sukra with bleeding injuries on head and belly was lying dead. P. W. 1 further stated that the accused jerka confessed before them that he had killed his wife by an Axe. P. W. 1 also noticed that wearing apparel of the accused was stained with blood. In cross-examination p. W. 1 further clarified that Sitaram came before him when he was working in his vegetable garden requested him to go to the accused's house since" police had arrived. P. W. 1 indicated that it was about 12 or 12. 30 p. m. , P. W. 1 also confirmed that sitaram was sharing the garden quarter of jerka and they used to go together for the work in the garden. ( 11 ) IT is interesting to note that suggestion was given by the defence to P. W. 1 that the victim Sukra refused to give shelter to sitaram when the latter approached the accused jerka for a shelter in the quarter. We will deal with the matter at the proper stage of this judgment. ( 12 ) P. W. 2 Gopal Porza another neighbour of the accused claimed that the alleged incident of murder had taken place at about 7. 30 a. m. of 12-2-95 when he was inside his house. P. W. 2 further claimed that hearing the cry of the children of accused Jerka he went to their house at about 8 a. m. and noticed that many persons such as Sitaram, ashit and others were there and accused jerka raising an Axe was threatening that if anybody would come he would be killed by him. It was also revealed by Jerka that he killed his wife by that Axe and Knife. Finding this condition the assembly of people decided to inform the police and after such information police came at about 11. 30 a. m. when P. W. 2 again went there and noticed how the dead body of Sukra was brought out and how the articles were seized. In cross-examination, P. W. 2 further clarified that extra Judicial confession made by Jerka was long before the arrival of the police. In cross-examination of P. W. 2 he further clarified that Sitaram was not present in the quarter at the time of his first visit in the morning. In cross-examination, P. W. 2 further clarified that extra Judicial confession made by Jerka was long before the arrival of the police. In cross-examination of P. W. 2 he further clarified that Sitaram was not present in the quarter at the time of his first visit in the morning. But Sitaram came back to the spot when police came. ( 13 ) P. W. 3 Anita Munda was the daughter of the accused Jerka and victim Sukra. Since she was minor and a student of Class iii, the trial Court after certain questions put to her and on being satisfied that the witness could give rational answer went on examining her. The evidence of P. W. 3 is that her father Jerka killed her mother in the morning with an Axe and a Knife. It is further clarified in cross-examination that the victim used to gossip with Sitaram and that the accused Jerka used to rebuke the victim sukra when she was found gossiping with Sitaram. She further clarified that on her return from play to the place Ashit called sitaram. ( 14 ) P. W. 4 Sitaram Oraon also claimed that the accused killed his wife. He further clarified as to why he came to share the quarter of the accused after severing his relation with his parents. It is also clarified that at the time of the incident Sitaram was alone inside the room adjacent to the kitchen and the wife of Sitaram went to the market and their children went to the house of grandfather. In cross-examination he further clarified that after the incident he went away for calling different persons. He also went to the Secretary's house to call him and the Secretary gave information to the police over Telephone. It is also stated that he narrated the incident to Ashit, Gopal (P. W. 2) and Secretary. It is also revealed that he came to know from Ashit that accused killed his wife. P. W. 4 admitted that he did not see actually the killing of Sukra at the hand of Jerka. ( 15 ) P. W. 5, Ratia Munda actually wrote the written complaint on the basis of which a formal F. I. R. was drawn. It is also revealed that he came to know from Ashit that accused killed his wife. P. W. 4 admitted that he did not see actually the killing of Sukra at the hand of Jerka. ( 15 ) P. W. 5, Ratia Munda actually wrote the written complaint on the basis of which a formal F. I. R. was drawn. His evidence is that he went to the place of occurrence after arrival of the police and noticed that the police arrested Jerka after opening the door and brought out the dead body of Sukra. It was noticed that Sukra died with bleeding injuries on her head and belly. It is also stated that the police seized Tangi and Knife and other materials from the place of occurrence in presence of P. W. 4 and other witnesses and he became the seizure list witness. In cross-examination, P. W. 5 stated that he was a compounder of the Tea Estate hospital. It is also revealed that he informed the police from his Garden Office over telephone. P. W. 5 proved the written F. I. R. (Ext. 3 ). It is to be noted that the said F. I. R. was written in Hindi and signed by P. W. 5 in English. It is indicated in the F. I. R. that on getting information of assault upon sukra, it was noticed that Jerka was standing infront of the door of his quarter with a tangi in his hand. On being asked, Jerka threatened that if anybody approaches near him, he would be killed. Accordingly, he made a telephone call to the police and when the police came everything was done in the manner indicated in the evidence. ( 16 ) IT is to be noted that arrival of P. W. 5 at the spot before the arrival of the police as indicated in the written complaint is not divulged in the substantive evidence. But the fact remains that he lodged the F. I. R. and police arrested Jerka and brought out the dead body of his wife with bleeding injuries on her head and belly. ( 17 ) P. W. 6, Dayasita Tanti also corroborates that Jerka murdered his wife, police came, arrested Jerka and recovered the dead body with bleeding injuries. He further stated that Jerka made confessional statement. ( 17 ) P. W. 6, Dayasita Tanti also corroborates that Jerka murdered his wife, police came, arrested Jerka and recovered the dead body with bleeding injuries. He further stated that Jerka made confessional statement. On being interrogated by the police, jerka admitted that he had committed murder. ( 18 ) P. W. 6 also noticed the blood on the wearing apparel of the accused. In cross-examination, P. W. 6 further added that when he came to the spot he saw the accused being tied up in the Courtyard. ( 19 ) P. W. 7, Fagu Munda is the brother of Jerka and his evidence is that he heard about the murder of Sukra at the hand of jerka by means of a Tangi on her head and a Knife of her belly. P. W. 7 also found the dead body of Sukra with injuries and also found Jerka was being tied up with rope. He also saw blood in his hand and wearing apparel. In cross-examination, he also admitted that Sitaram used to live in the quarter of the accused at the relevant time. ( 20 ) P. W. 8, S. I. Prasanta Kumar Nandi investigated the case and his evidence narrates all the formalities that are required to be done by the Investigating Officer in course of investigation. But surprisingly enough, he did not make any attempt to find out the cause of assault on Sukra. His evidence in the cross-examination is that when he went to the place of occurrence he noticed Sitaram was standing in the Courtyard along with the members of the public. It is also clarified by him that on the basis of sketch map the kitchen wherefrom the dead body of sukra was recovered was approachable from the drawing room in which Sitaram was staying. Of course, he further clarified that the kitchen can also be negotiated from the backside. But the most salient part is that he noticed the door of the drawing room open. P. W. 8 further denied the suggestion that if any proper investigation was made, it would have revealed something otherwise. ( 21 ) DR. Arabinda Dey, Autopsy Surgeon was brought into Court as Court witness by exercising power under Section 311 of Cr. But the most salient part is that he noticed the door of the drawing room open. P. W. 8 further denied the suggestion that if any proper investigation was made, it would have revealed something otherwise. ( 21 ) DR. Arabinda Dey, Autopsy Surgeon was brought into Court as Court witness by exercising power under Section 311 of Cr. P. C. and his evidence is that Sukro died as a result of Injuries inflicted on her person which was ante-mortem and homicidal in nature. He also narrated on the basis of postmortem report as regards the nature of injuries on the head as well as on belly. Suggestion was given whether two of such injuries could be done by one person and the reply was that it might be caused by two persons, one after the other and with a tangi. ( 22 ) WHEN the materials collected in the evidence were put to Jerka Munda in his examination under Section 313 of Cr. P. C. , he simply replied that the allegations are all false. But he did not explain as to how his wife died. ( 23 ) AFTER consideration of all the evidence adduced in this case, it is proved beyond all reasonable doubt that Sukro died as a result of assault inflicted on her head as well as on belley. From the evidence, it is also clarified that the injuries on head could be inflicted by a Tangi and the injuries on the belly could be done by a knife. Both the weapons were seized with bloodstains from the place of occurrence. It also appears that those weapons and the wearing apparels of the accused were stained with blood. Of course, blood group could not be detected. The ocular version of the witnesses coupled with the facts are sufficient to indicate that it was a case of murder. ( 24 ) THE trial Court while considering this aspect of the matter rightly considered that at the time of the alleged incident the accused jerko and Sitaram (P. W. 4) were present in the quarter. But it has not been explained as to how the entire responsibility of murder was imposed on accused Jerko. It appears that placing reliance on the ocular version of the witnesses, the trial Court took this view. But it has not been explained as to how the entire responsibility of murder was imposed on accused Jerko. It appears that placing reliance on the ocular version of the witnesses, the trial Court took this view. But surprisingly enough neither the trial Court nor the Investigating officer, nor the other witnesses could explain as to what prompted Jerko to infliet such injuries on the person of his wife. Though motive does not play any important role in criminal case, even then in a case of this nature where the wife was engaged in the kitchen for preparation of bread, it was incumbent upon the prosecution to ascertain as to what prompted Jerko to assault his wife in that early hour of the day. ( 25 ) P. W. 4, Sitaram claimed that he was lying in his room at that moment. The learned counsel appointed as defence counsel in this case in the trial Court did not take the trouble of ascertaining as to what was the role played by Sitaram before or at the time of the alleged offence. P. W. 4, moreover, stated that the accused Jerko was cutting fire wood. Victim Sukro was in the kitchen and that P. W. 3, daughter of the accused and the victim, was taking bread inside the bedroom. The silence of Sitaram on the point of actual assault indicates an untrue story, which was suggested by the investigating Officer. ( 26 ) IT is proved by the witnesses that p. W. 4, Sitaram started living in the drawing room of accused Jerko for the last 3-4 months. It is also the evidence that at the relevant time the wife of Sitaram went to the market and his children went to the house of their grandfather. ( 27 ) P. W. 3 has stated that after eating bread she went away to play. So, there are sufficient materials to indicate that at a particular moment Sitaram (P. W. 4) and the victim sukro were alone in that quarter while the accused Jerko was cutting fire wood outside. This important situation coupled with the version of P. W. 3 that Sitaram used to gossip with her mother Sukro and that accused Jerko rebuked Sukro suggest existence of provocative circumstances prior to death of Sukro. ( 28 ) NEXT point is the silence of Sitaram as regards actual incident. This important situation coupled with the version of P. W. 3 that Sitaram used to gossip with her mother Sukro and that accused Jerko rebuked Sukro suggest existence of provocative circumstances prior to death of Sukro. ( 28 ) NEXT point is the silence of Sitaram as regards actual incident. It is not clarified by him when he and Sukro were in the house, how and when the accused Jerko came to assault Sukro. On the other hand, the evidence of Sitaram is sufficient to indicate that immediately after the incident he fled away from the quarter and came back subsequently on the arrival of the police. It is also to be noted that the instrument by which Jerko was cutting fire wood appear to have been used in the first assault on the head of Sukro. All these facts if taken together indicate a situation that Jerka himself had seen some incident of Sukro with sitarm which prompted him to rush to the kitchen with the instrument by which he was cutting the fire wood. The manner of assault on her head by the said instrument (Tangi)and also the second attack by the knife are sufficient to indicate that Jerko became so much annoyed and angry that he inflicted the injuries on the person of his wife. Such brutal assault cannot be contemplated without a provocation and without any heat of passion. ( 29 ) THE circumstances indicated here- inabove are sufficient to indicate that the accused Jerka had been annoyed by the victim to the utmost and practically murder was committed in the heat of passion at that moment. Practically the Investigating Officer had added Section 304 of I. P. C. at the initial stage of investigation. But the incapability of the Investigating Officer to investigate on the point of provocation, practically promoted him to submit the charge-sheet under Section 302, of I. P. C. The trial Court finding no other alternative, had framed a charge under Section 302 of the I. P. C. ( 30 ) AFTER careful scrutiny of the materials on record and the circumstances explained hereinabove, we come to the conelusion that the conviction of the accused under Section 302 of I. P. C. is liable to be set aside and he is to be convicted thereunder. Since the charge was framed under Section 302 of I. P. C. and the conviction is imposed under lessor Section, there is no necessity to hear the accused on the point of sentence and we take the view that the accused is to be sentenced to suffer rigorous imprisonment for ten years. ( 31 ) THE appeal is accordingly allowed in part. The conviction and sentence imposed by the trial Court under Section 302 of I. P. C. are set aside. The accused is found guilty under Section 304 (11) of I. P. C. and is sentenced to suffer rigorous imprisonment for ten years. Period of detention undergone be set off in terms of provision of Section 428 of the Code of Criminal Procedure. The sentence is thus modified. ( 32 ) THE trial Court is directed to issue the modified Jail Warrant on receipt of a copy of this judgment immediately. ( 33 ) I agree. Appeal partly allowed.