JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. R. Ali, the learned Amicus Curiae who was appointed on 10-9-2008 in place of Mr. K. K. Gupta, earlier appointed Amicus Curiae since Mr. Gupta was found absent on 10-9-2008 when this appeal was taken up for hearing as part heard matters as Mr. Gupta was heard on 22-8-2008 as amicus curiae. Also heard Mr. K.C. Mahanta, the learned P.P. Assam. 2. This criminal appeal from jail has been directed against the conviction of the appellant under Section 302, I.P.C. and the sentence to undergo rigorous imprisonment (for short R.I.) for life so imposed the learned Ad-hoc Addl. Sessions Judge, Fast Track Court, Sonitpur, Tezpur in Sessions Case No. 225(S) 2000 by his judgment and order dated 15-3-2002. 3. The factual matrix briefly as emerged from the F.I.R. dated 16-8-2000 lodged by P.W. 2, Dilip Lohar with the Dhekiajuli Police Station is that on the night of 15-8-2000 the appellant assaulted his wife Smt. Budhni Karmakar (hereinafter referred to as, the deceased) the elder sister of the informant, P.W. 2 and injured her seriously. Around 10 a.m. on 16-8-2000 she was admitted to Dhekiajuli Health Centre where she died at around 1.10 p.m. 4. Having completed the investigation being ensued on the basis of the said F.I.R., the police filed the charge-sheet against the appellant under Section 302, I.P.C. The case was, thus, committed to the Court of the learned trial Court mentioned above for its trial and during trial the prosecution examined as many as ten witnesses including P.W. 9, Dr. Ranjan Kumar Das, who performed the post-mortem on the dead body of the deceased so projected by the prosecution. The learned Sessions Judge upon hearing the learned Counsel for the parties and having evaluated the testimony of the prosecution witnesses found the appellant guilty for committing the offence of killing the deceased and accordingly convicted and sentenced him as indicated above. 5. At the very outset let us have a look into the medical evidence of P.W. 9 who found the following injuries on the dead body of the deceased. 1. One cut mark over the forehead (mid portion). Size about 4 c.m. in length. Cut mark seen over the frontal bone and blood clot coming through the rent. 2. 4 c.m. cut mark seen over the right eyebrow. Her uterous was normal in size and healthy. 1. One cut mark over the forehead (mid portion). Size about 4 c.m. in length. Cut mark seen over the frontal bone and blood clot coming through the rent. 2. 4 c.m. cut mark seen over the right eyebrow. Her uterous was normal in size and healthy. In my opinion the woman died of shock and haemorrhage as a result of head injury sustained. The doctor in his opinion stated that the above mentioned injuries i.e. injury No. 2 can be caused by falling on hard pointed substance. The injury No. 1 was caused by sharp weapon. 6. We have also carefully gone through the evidence of the prosecution witnesses namely P.W. 1 Birsingh Purti, P.W. 2 Dilip Lohar, P.W. 3 Budharam Tanti, P.W. 4 Parbati Karmakar, P.W. 5 Dasu Karmakar, P.W. 6 Biswanath Rai and P.W. 7 Jatin Karmakar. 7. P.W. 1 in his deposition stated that on being informed by one girl namely Radha, who was not examined by the prosecution for the reason best known to them, being his neighbour, along with his wife went to the house of Ratan, the appellant one morning at 7 a.m. and found the deceased lying injured on a bamboo mat. He saw cut injuries in the deceased's forehead, back of the head and in the belly. According to this witness when he asked the appellant why he had assaulted the deceased the appellant answered what to do, the assault has already been made. The appellant assaulted the deceased because of keeping the house dirty. When this witness reached the place of occurrence the deceased was not in state to talk. The evidence of this witness as regards the injuries inflicted on the persons of the deceased according to us did not corroborate with the medical evidence which only indicated one injury i.e. injury No. 1 being the head injury and it was being the fatal injury. That apart, one Radha who informed him in the morning was not examined by the prosecution. 8. P.W. 2, Dilip Lohar, the informant, testified that the deceased was his sister and appellant was his Bhinihi (husband of elder sister). According to this witness on being informed that appellant assaulted his elder sister, he went there and he could see that the deceased was lying on a bamboo mat. He saw a cut injury in the deceased's forehead. P.W. 2, Dilip Lohar, the informant, testified that the deceased was his sister and appellant was his Bhinihi (husband of elder sister). According to this witness on being informed that appellant assaulted his elder sister, he went there and he could see that the deceased was lying on a bamboo mat. He saw a cut injury in the deceased's forehead. Deceased was not in a state to talk. When asked by this witness, the appellant told that he had assaulted her mistakenly. Deceased was then taken to Dhejiajuli Civil Hospital where she succumbed to her death at 12 p.m. on the same day. He then lodged ezahar to the Thana. In cross this witness reiterated his statement saying that the appellant stated to him that he assaulted deceased by mistake. This witness's testimony as regards injury on the forehead corroborated with the evidence of medical evidence. 9. P.W. 3 Budhram Tanti stated in his evidence that around 9 p.m., on the day of occurrence the appellant's neighbours Dasu (P.W. 5) and Biswanath (P.W. 6) came to his house and informed him that there was a hue and cry at the appellant's house and he should go there. However he said to them that at that hour of night, what he could do to settle a dispute between husband and wife and asked them to pacify the couple and accordingly he sent them back. In the next morning at 6.30 a.m. the aforesaid two persons namely Dasu and Biswanath again came to him and informed that the deceased's condition was deteriorating as a result of assault, which made on her by the appellant. Then he went there and found the deceased was lying on a bed inside deceased's house. Though at that time the deceased was alive and somehow taking her breath, but she was not able to talk. He saw injuries on Budhni's head. At that time the appellant was not present in his house but later on when he met him, on being asked, said appellant did not tell him anything regarding the incident. 10. P.W. 4, Smt. Parabati Karmakar evidenced that she came to know about the occurrence in the morning from Biswanath who told him that the appellant assaulted the deceased. When she went there he saw that the appellant helping the deceased to drink water. At that time deceased was not in a position to talk. 10. P.W. 4, Smt. Parabati Karmakar evidenced that she came to know about the occurrence in the morning from Biswanath who told him that the appellant assaulted the deceased. When she went there he saw that the appellant helping the deceased to drink water. At that time deceased was not in a position to talk. 11. P.W. 5 Dasu Karmakar in his testimony stated that there was a quarrel between the appellant and the deceased at around 8/9 p.m. and the same was heard by him from his house. Then this witness went to the house of the appellant along with Biswanath however their efforts to pacify them bore no fruit. Then they went to the house of line Chowkidar Budharam Tanti's (P.W. 3) house. Then they told him about the quarrel that had started between the appellant and the deceased and asked him to come with them in order to pacify them. However he declined to come with them during that hour of night and told them to take one or two persons of the neighbourhood instead. They then went to the house of the appellant along with Jatin, a neighbour and found the appellant and deceased in calm. The appellant told them that the quarrel took place over the issue of the house getting dirty. Next morning when Biswanath gave information that they went along with him to appellant's house and he saw deceased was lying in unconscious condition on the bed. In cross this witness testified that when he along with Biswanath went to the place of occurrence the appellant and deceased were present there. There were none except the appellant and deceased at that time. 12. P.W. 6 Biswanath Rai narrated the same story that was projected by P.W. 5. 13. P.W. 7, Sri Jatin Karmakar corroborating the evidence of P.W. 4 stated that after getting the information they went to the house of the appellant and found the appellant's wife in a serious condition. Going there he saw that appellant's wife was gasping and Ratan, the appellant was making her drink water with a spoon. 14. 13. P.W. 7, Sri Jatin Karmakar corroborating the evidence of P.W. 4 stated that after getting the information they went to the house of the appellant and found the appellant's wife in a serious condition. Going there he saw that appellant's wife was gasping and Ratan, the appellant was making her drink water with a spoon. 14. It is also vehemently contended by the learned Amicus Curiae that considering the medical evidence as well as the evidence of the witnesses as regards the injury, the offence would not come under the ambit of Section 302, I.P.C. but under Section 304, Part II, I.P.C. In support of his above arguments, strong reliance has been placed on the following two decisions – (i) Kusumbar Buragohan vs. State of Assam & (ii) Noor Islam vs. State of Assam. 15. It is true that there was only one fatal injury on the forehead of the deceased and causing of such injury was also confessed by the appellant who stated that the same was done mistakenly and not intentionally. 16. Having noticed the injury on the forehead and given the attending circumstances so exhibited from the evidence of the prosecution of the witnesses, we are of the firm opinion that the appellant must have inflicted on the forehead of the deceased due to some quarrel between the husband and wife and he certainly had no intention to kill his wife although he had no knowledge that the said act would result in the death of the deceased. 17. After having meticulously scrutinized the testimony of the witnesses as mentioned above, it transpires that initially there was a quarrel between the husband and wife as regards making the house dirty and out of such quarrel the appellant was provoked and assaulted his wife inflicting the injury No. 1 on her forehead which become fatal. On the thorough scrutiny of the evidence it appears to us that appellant assaulted his wife without any intention to kill her. It is admitted that there was no eye-witnesses to the occurrence and the entire conviction has been rested upon the circumstantial evidence. 18. On the thorough scrutiny of the evidence it appears to us that appellant assaulted his wife without any intention to kill her. It is admitted that there was no eye-witnesses to the occurrence and the entire conviction has been rested upon the circumstantial evidence. 18. Upon close survey of the entire facts and circumstances as projected by the prosecution and also as discussed above, we are of the view that it is not a case of Section 302, I.P.C. but the appellant is liable to be convicted under Section 304, Part-II, I.P.C. and accordingly we set aside the conviction of the appellant under Section 302, I.P.C. and convict him under Section 304, Part II. 19. At this stage the learned Amicus Curiae has informed the Court that by this time the appellant has already served the sentence more than 8 years as an under-trial prisoner as well as a convict after passing the impugned judgment dated 15-3-2002 and as such the appellant may be allowed to set at liberty sentencing him to the period undergone. We find enough force in such submission and accordingly in view of the above, we sentence him to the period already undergone. We order that the appellant be set at liberty forthwith if he is not wanted in any other case. 20. In the result the appeal stands disposed of to the modification of the conviction and sentence above noted. 21. LCR be send down immediately. Before parting with the case at hand, we would like to put on record our appreciation to Mr. R. All, learned Amicus Curiae for rendering his valuable assistance and help in arriving at the aforesaid decision and accordingly we order that he is entitled to get his professional fees which is quantified at Rs. 5,000/-