JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. S. Dutta, learned Amicus curiae appearing on behalf of the Appellant and Mr. K.A. Mazumdar, learned Public Prosecutor, Assam. 2. The prosecution case in brief is that on 8.4.01 at about 2:00 A.M., the Appellant killed his wife by cutting her neck with a 'dao' and to this effect an FIR was lodged by P.W. 2 (Bhagaban Din Konwar) with the Patharkandi Police Station. 3. The learned Sessions Judge, Karimganj on appreciation of the testimony of as many as 9(nine) witnesses so examined by the prosecution including P.W. 7 (Dr. R.N. Das) who conducted autopsy on the dead body of one Khori konwar (hereinafter referred to as 'the deceased') and also taking into account the examination of the Appellant under Section 313 Code of Criminal Procedure found the Appellant guilty of the offence of killing his wife/the deceased and vide his judgment and Order dated 5.7.02 passed in Sessions Case No. 7/02 convicted the Appellant under Section 302 IPC and sentence him to undergo rigorous imprisonment (for short, 'R.I.') for life and to pay fine of Rs. 1,000/-, in default, further six months R.I. 4. the conviction and sentence of the Appellant above noted have been assailed in this criminal appeal by the Appellant from jail. The impugned conviction of the Appellant was basically handed down by the learned Sessions Judge on the basis of two eye-witnesses, namely, P.W. 3 (Ganesh Konwar) and P.W. 4 (Muni Konwar), both being the son and daughter of the Appellant as well as the deceased and also taking note of the statements made by the Appellant in his examination under Section 313 Code of Criminal Procedure. 5. We have scrupulously scanned and surveyed the testimonies of all the witnesses projected by the prosecution including the eyewitnesses i.e., P.W. 3 and P.W. 4. We have also meticulously analysed the statements made by the Appellant under Section 313 Code of Criminal Procedure. 6. The Appellant, in his examination under Section 313 Code of Criminal Procedure against Question No. 6 i.e., "Do you have something more to say? Will you adduce evidence"? the Appellant replied as under: Ans: On the night of occurrence my wife had illicit connection with Sabir who lived nearby my father-in-law's house. My wife had been to father-in-law's house without any consent. When she returned a quarrel ensued between her and me over this matter. Will you adduce evidence"? the Appellant replied as under: Ans: On the night of occurrence my wife had illicit connection with Sabir who lived nearby my father-in-law's house. My wife had been to father-in-law's house without any consent. When she returned a quarrel ensued between her and me over this matter. Then my wife beat me up with lathi. For this, I got excited and went to assault her. Since the night was dark, I did not notice her the dao hit her in the neck. I did not kill her willingly. There is no evidence to cite. 7. P.W. 3 (Ganesh konwar), who was projected as eye-witness being a child witness, aged about 12 years, deposed that on the night of occurrence he along with his elder sister Muni, Rajkumari, Dhanesh, Babia, Burhi, Bhola were sleeping together. According to this witness, hearing a quarrel between his parents i.e., the Appellant and the deceased, he woke up and it was his brother Dhanesh who saw his mother beating his father with 'lathi' and this fact was later on revealed to him by Dhanesh. When he woke up he saw his father armed with a 'dao' and he screamed when his father cut his mother. 8. On the other hand, another eye-witness so projected by the prosecution i.e., P.W. 4 (Muni Konwar) being also a child witness, aged about 14 years, in her deposition, stated that upon hearing the screaming of his mother at about 2:00 P.M. on the night of occurrence, she woke up and saw her father beating her mother black and blue with the bottom part of the stem of a 'Chu' tree 'lathi' and her mother was hit on the head inside the house. When, she opened the door, her mother went out to the courtyard and fell down whereupon her father dealt 'dao' blow on her neck. 9. P.W. 7 (Dr. R.N. Das), who conducted autopsy on the dead body of the deceased, in his medical evidence, found the following injuries on the dead body of the deceased: An average built Hindu female aged about 40 years whose rigor mortis was absent. Her eye closed, mouth half opened. Head was completely separated from the body at the level of fifth cervical vertebra Carotid artery, trachea, oesophagus and other adjacent internal structures were completely cut. Her eye closed, mouth half opened. Head was completely separated from the body at the level of fifth cervical vertebra Carotid artery, trachea, oesophagus and other adjacent internal structures were completely cut. The margin of the wound was regular and caused by sharp and heavy weapon. One abrasion mark was seen on the right elbow joint about 1"×1". 10. Having meticulously gone through the depositions of P.W. 3 and P.W. 4 and also keeping in view the statement made by the Appellant under Section 313 Code of Criminal Procedure., we are of the firm opinion that it was the Appellant himself who was involved in killing of his wife. However, it is seen from the evidence of P.W. 3 and P.W. 4, who have been projected as eye-witnesses by the prosecution that there are some contradictions and inconsistencies as regards beating up the deceased by their father. When P.W. 3 deposed that it was her mother who was beating his father with a 'lathi' and that fact was told to him by Dhanesh, P.W. 4 in her deposition testified that it was her father who was beating her mother black and blue. Surprisingly, Dhanesh, the another son of the deceased and the Appellant, according to P.W. 3, who told him about the beating of his father by the deceased, was not examined by the prosecution for the reasons best known to it. 11. Having considered such contradictions and inconsistencies as well as bearing in mind the statements made by the Appellant in his examination under Section 313 Code of Criminal Procedure., it is found that the Appellant admitted that he killed his wife/the deceased as she was having illicit relationship with one Sabir who lived nearby his father-in-law's house and she used to visit his father-in-law's house without his consent. On the day of occurrence, when she returned home, a quarrel arose between the Appellant and the deceased and according to the Appellant, his wife/the deceased first beat him up with 'lathi' and on such, the Appellant suddenly provoked and on excitement he dealt 'dao' blow on her and since it was dark night, the Appellant did not notice on which part he dealt such blow. 12. 12. Given facts and circumstances of the case in its totality and keeping in view the mitigating circumstances, we are of the view that it is a case which falls under the purview of Section 304 Part-I IPC instead of Section 302 IPC. We do accordingly set aside the impugned conviction of the Appellant under Section 302 IPC and convict the Appellant under Section 304 Part-I IPC. We modify the sentence of the Appellant from R.I. for life to a sentence for a period of 10(ten) years R.I. with a fine of Rs. 500/-, in default of payment of fine, further R.I. for 1 (one) month. 13. In the result, this criminal appeal stands partly allowed to the extent of modification of sentence as indicated above. Send back the L.C.R. forthwith. 14. Before parting with the case, we would like to put on record our appreciation to Mr. S. Dutta for his valuable assistance rendered in arriving at a decision aforesaid in this appeal as Amicus Curiae. Accordingly, he is entitled for his professional fees which is quantified at Rs. 5,000/-. At this, Mr. Dutta, in his usual fairness, submits that the said amount may be deposited with the Assam State Legal Services Authority, Assam at Guwahati. It is ordered accordingly.