1. Heard Mr. T.H. Hazarika, learned amicus curiae appearing for the appellant and Mr. P.O. Gayon, learned counsel representing the respondent. 2. This jail appeal has been preferred by the appellant against the judgment and order dated 7.9.2004 passed by the learned Sessions Judge, Sivsagar in Sessions Case No. 78(S-C) of 2003 convicting the appellant under section 304, Part II, IPC and thereby sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000 in default, further rigorous imprisonment for another 3 months. 3. The prosecution case in brief is that an ejahar was lodged on 29.8.2002 by PW1 Shrj Paresh Rajwer, the informant and the elder brother of the appellant, with the Officer-in-charge Moranhat Police Station alleging that on the earlier night, his brother Gobin Rajwer, the appellant killed his wife Sabitri Rajwer and left the house breaking the same. 4. On the basis of the above ejahar, police registered a case being Moranhat PS. No. 62/02 under section 302, IPC and investigation ensued. 5. During the investigation, police did inquest on the dead body of the deceased and seized one bamboo stick from the house of the appellant and the accused was subsequently arrested from his hide-out in a nearby tea bushes. 6. On completion of the investigation police submitted charge-sheet against the appellant under section 302, IPC. 7. During the trial before the learned Sessions Judge, Sivsagar, to whom the case, being exclusively triable by the Court of Sessions, was committed by the learned Judicial Magistrate,1st Class, Charaideo at Sonari, the prosecution examined as many as 13 witnesses including Doctor, PW-12 and the Investigating Officer for short 'the 1.0' PW13 when the defence examined none. The appellant was examined under section 313, Cr. PC and he denied the charge under section 302, IPC pleading not guilty. 8. Having properly and adequately considered the material evidence on record both oral and documentary and upon hearing the learned counsel for the parties, the learned Judge found the appellant guilty of the offence under section 304, Part II, IPC instead of section 302, IPC and convicted and sentenced him accordingly observing that the death of his wife occurred by assaulting with a bamboo stick when he was under influence of liquor and sentenced him accordingly, to undergo 10 years rigorous imprisonment as mentioned above. 9. 9. This court, on appreciation of the entire evidence comprehensively and scrupulously, has found that admittedly there was no eye witnesses to the occurrence. The conviction under section 304, Part II and subsequent sentence were passed absolutely on the circumstantial evidence as emerged from the testimony of those witnesses. 10. PW 12, the Doctor who examined the dead body of deceased Sabitri found the following injuries as indicated in the post mortem report: "1. An area of ecchymosis across the anterior abdominal wall measuring 20 cm long (originally) and 8 c.m. wide found. 2. An area of ecchymosis in the back extending from lower back to right buttock measuring 20 cm long and 15 cm wide. 3. A lacerated wound in the left buttack measuring 8 c.m. long and 5 cm wide found. Clotted blood in and around the wound found." 11. In his opinion doctor stated that the death was due to Syncope as a result of injuries sustained by the deceased and the injuries sustained by the deceased might be caused by material Exhibit 1, the bamoo stick shown to him in the court. 12. On the other hand from the deposition of those witnesses basically PWs 1, 2, 3, 4, 5, 6, 7 and 8 it is seen that both the deceased and the appellant were habitual drunkes and they used to quarrel all the times and on the day of occurrence, the appellant was under the influence of liquor and in the morning the dead body of the deceased was found in his house. Even the appellant in his extra judicial confession stated that he killed his wife Sabitri by bamboo stick. It manifestly appears from the evidence of those witnesses that the assault was inflicted by a bamboo stick Ext. 1 by the appellant upon the deceased under influence of liquor as they were in the habit of drinking and there was no intention to kill his wife assaulting by a bamboo stick. 13. That being the position, this court is of the considered view that the learned trial court was justified in convicting the appellant under section 304, Part II, IPC holding that due to sudden provocation, the appellant assaulted his wife with the bamboo stick and at the time of commission of such offence, he was deprived of the power of self control due to influence of liquor. Accordingly, the conviction of the appellant under section 304, Part II needs no interference from this court. 14. However, at this stage Mr. Hazarika, learned amicus curiae has submitted that the appellant has no previous criminal record and considering his age of 40 years at the time of commission of offence and since at the time of incident he was a habitual drunker and he committed the offence due to grave and sudden provocation to be covered by Exception 1 to section 300, IPC, the sentence of 10 years may be reduced reasonably. 15. I have considered the submission made by the learned amicus curiae and also taking into account the mitigating circumstances as revealed in this case, this court is of the considered view that the interest of justice would be satisfied ,if the sentence of 10 years is reduced to the period already undergone. It is stated at the Bar that the accused has been detained in jail since 29.8.2002 for about 4 years 9 months. It is ordered accordingly. 16. In view of what has been stated, discussed and observed above, this appeal stands allowed to the extent as indicated above. 17. Before parting with the record, I would like to put on record the appreciation to Mr. T.H. Hazarika, the learned appointed amicus curiae for his help and assistance rendered to arrive at a decision in this jail appeal and accordingly, it is ordered that he is entitled to get his profession fee which is quantified at Rs. 2,500. 18. Send down the L.C.R immediately.