JUDGMENT Aftab H. Saikia, J. 1. Heard Ms. S. Khataniar, learned Amicus Curiae, appearing for the Appellant. Also heard Mr. K.A. Mazumdar, learned Additional P.P., Assam. 2. This jail appeal has been directed against the judgment and order dated 15.12.01 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 3 (DH)/ 01 whereby the Appellant was convicted under Section 302 IPC having found guilty for killing Jiten Chutia, (hereinafter referred to as 'the deceased') and sentenced to undergo imprisonment for life and to pay a fine of Rs. 200/-, in default, imprisonment for 7 (seven) days. 3. The facts of the case, in brief; as unfolded by the prosecution are that P.W. 2, Luku Raj Chutia on 18.7.99, lodged an ejahar with Sisiborgaon Police Outpost under Silapathar Police Station alleging that on 17.7.99 (yesterday), around 6-30 p.m., the Appellant had killed the deceased by beating him with a split bamboo. The police after completion of the investigation submitted charge-sheet against the Appellant under Section 302 IPC. 4. During the trial, prosecution examined as many as 16 witnesses including two official witnesses, namely, P.W. 15, Dr. Putul Ch. Saikia and P.W. 16, Sri Kamala Kt. Bora, Investigating Officer (I.O. for short). The Appellant was also examined under Section 313 Code of Criminal Procedure. 5. Learned Sessions Judge having carefully appreciated the depositions of all the witnesses and also keeping in view the statement made by the Appellant in his examination under Section 313 Code of Criminal Procedure to the effect that he admitted the killing of the deceased found the Appellant guilty of offence under Section 302 IPC and consequently, convicted and sentenced him as indicated above. 6. We have meticulously analysed the testimony of all the witnesses, particularly, P.W. 1, Smti Puneswari Chutia, P.W. 2, Sri Luku Raj Chutia, son of the deceased, P.W. 13, Sri Deba Ram Chutia, P.W. 14, Sri Bolo Ram Chutia who were projected as the eye witnesses including the medical evidence of P.W. 15, Putul Ch. Saikia, who conducted the post mortem on the person of the deceased. 7. P.W. 1 deposed that on the day of occurrence, in the evening, P.W. 14, Bolo Chutia informed him that the Appellant had been beating the deceased. Then she went to the place of occurrence and saw the Appellant assaulting the deceased. Saikia, who conducted the post mortem on the person of the deceased. 7. P.W. 1 deposed that on the day of occurrence, in the evening, P.W. 14, Bolo Chutia informed him that the Appellant had been beating the deceased. Then she went to the place of occurrence and saw the Appellant assaulting the deceased. When she asked the Appellant why he was beating the deceased, the Appellant warned her not to come near to him. Out of fear P.W. 1 left the place and told Bolo Chutia, P.W. 14 that she could not stop the Appellant in assaulting the deceased. Bolo Chutia informed at the house of the deceased. Next day P.W. 1 heard about the death of the deceased. 8. Sri Luku Raj Chutia, P.W. 2 was the son of the deceased. He deposed that on 17.7.99, around 6-30 pm, on being informed by Bolo Chutia, P.W. 14 and Purnakanta Chutia, P.W. 6, that the accused Appellant had been beating the deceased on the embankment, he went to the place of occurrence and saw the Appellant hitting the deceased with lathi. Then he also hit the Appellant in his leg. He found his father, the deceased, lying on the embankment. Deceased was not capable to speak. On that very day, he took the deceased to Dhemaji Civil Hospital where the deceased succumbed to his injuries. 9. P.W. 13 was an another eyewitness. He deposed that he saw two persons fighting on the embankment. When he asked who were there then the Appellant told, "Do not come here. I will finish Jiten." Out of fear, he did not go near the place of occurrence. Then he asked Bolo Chutia, P.W. 14 to inform at the deceased's house. This witness further deposed that village people caught the Appellant and handed him over to the police. 10. Another eyewitness, P.W. 14, Bolo Chutia evidenced that he saw the accused Appellant hitting the deceased with a split bamboo in the evening on the day of occurrence while he was sitting on the embankment after tying the cows up. Then he informed P.W. 1, Puneswari Chutia. Though she came to separate them, the Appellant warned not to come near to him. So, P.W. 1 asked him to inform the house of the deceased. Then he alongwith P.W. 6 informed the deceased's house. 11. P.W. 15, Dr. Putul Ch. Then he informed P.W. 1, Puneswari Chutia. Though she came to separate them, the Appellant warned not to come near to him. So, P.W. 1 asked him to inform the house of the deceased. Then he alongwith P.W. 6 informed the deceased's house. 11. P.W. 15, Dr. Putul Ch. Saikia on his examination on the person of the deceased found the following injuries: Rigormortis present. Eye closed. Upper front teeth was exposed. Right eye-blood stain with a sattor (sic) underneath. On right parietal area 1"× 1/2 × 1/4 " bone-deep lacerated margin wound. On just above the left ear on scalp, lacerated margin wound 1/2 × 1/4 × 1/4" bone deep. On right eye brow laterally 1"× 1/4 × 1/2 lacerated margin wound. A cut wound with convexity to lateral side 1" × 1/4 × 1/4 lacerated margin wound. Both wounds have haemotoma underneath. Darkening colour linear making of bruise on lateral aspect of both legs of 4" × 11/2 haemotoma underneath. Small lacerated wound on upper forth of right ear. On tip of left big toe × 1/4 × 1/4 ×1/8" lacerated wound with blood stain. Cranium and Spinal Canal: On right parietal area 1"× 1/2 × 1/4 " bone deep lacerated margined wound just above the left ear scalp wound lacerated margin of size 1/4 × 1/4× 1/4 bone deep. Collection of liquid blood under the scalp. Skull-healthy. Vertebra-healthy. Haemotoma on both temporal muscles. Membrane is healthy stained with blood. Collection of blood under piameter. Brain and Spinal Cord: Brain is completely masked by blood clot, haemotoma on both hemisphere blood coat seen in some parts of brain matter, cerebrum on both hemisphere. Thorax: In the heart, liquid blood in small amount was present in chambers. Chambers healthy. Abdomen All the organs in the abdomen is healthy. The stomach contains small amount of digested materials. Intestine contains fecal matter and bladder was empty. All the injuries are ante-mortem in nature. The Doctor opined that the cause of death was due to head injury as a result of the injuries sustained: 12. It is also reflected from the evidence of the witnesses that the deceased was a teacher and he was aged about 47 years at the time of death. 13. We have also minutely examined the statement made by the Appellant under Section 313 Code of Criminal Procedure wherein he admitted his guilt of killing the deceased. It is also reflected from the evidence of the witnesses that the deceased was a teacher and he was aged about 47 years at the time of death. 13. We have also minutely examined the statement made by the Appellant under Section 313 Code of Criminal Procedure wherein he admitted his guilt of killing the deceased. The statements of the Appellant under Section 313 Code of Criminal Procedure are as follows: Qus: It is alleged and out in evidence that in the evening on 17.7.99 you killed Jiten Chutia by hitting him at Bhebeli village under Silapathar police station. Is it true? Ans: Yes, I killed him. Qus: That while you were beating Jiten witness Debaram Chutia asked "who are you" when you told him that you would finish Jiten. Did it so? Ans: I do not remember what I told. Qus: It is out in evidence that you threatened witness Puneswari Chutia not to go near him and that Jiten died the next day. What do you say? Ans: I did not threaten her. Qus: Do you have anything to say? Ans: On the day of occurrence l went to Devi than' (a place, a religious establishment) and I killed Jiten Chutia under the influence of deity (goddess) Qus ; Will you adduce defence witness? Ans: No. 14. From the examination of the Appellant as quoted above it would clearly go to show that he killed the Appellant under the influence of deity and he had emphatically answered the first question, i.e. he killed the deceased. At the same time, the depositions of P.Ws. 1,2,13 and 14 would manifestly reveal that it was the Appellant who was continuously beating the deceased by a bamboo split and when these witnesses wanted to go near to the Appellant, he chased them away warning them not to come to him and he would finish the deceased. 15. Having gone through the depositions of those witnesses mentioned above, we are absolutely convinced that those witnesses are reliable and trustworthy and there is no element of doubt to disbelieve the depositions so adduced by them. 16. Considering the facts and circumstances of the case in its entirety and also upon hearing the learned Counsel including Ms. S. Khataniar, learned Amicus Curiae, we find no convincing material or any plausible ground to upset the impugned conviction and sentence. 17. 16. Considering the facts and circumstances of the case in its entirety and also upon hearing the learned Counsel including Ms. S. Khataniar, learned Amicus Curiae, we find no convincing material or any plausible ground to upset the impugned conviction and sentence. 17. We have closely perused the statements made by the Appellant under Section 161 Code of Criminal Procedure wherein he explained his injury regarding breaking of his right hand. The same is also reflected in his examination on sentence wherein he stated as follows: I have no brothers. My hand was broken by beating. I have two daughters. So I may be given mercy. 18. P.W. 13 deposed that he saw two persons were fighting which indicates that there was a mutual fight between the two persons and such mutual fight might result in the breaking of hand of the Appellant, which was not explained. More so, it was stated by P.W. 13 that the village people caught the Appellant and handed him over to the police but records show that the Appellant was absconding for about eight months from the date of incident, i.e. 17.7.99 and he was arrested by police only on 23.03.2000. 19. That being the position, we do not find that the deposition of P.W. 13, one of the eyewitnesses, would go to reveal that there was a mutual fight and more so, nothing has come out from the evidence of the eyewitnesses about the intention and motive of the Appellant in assaulting the deceased. However, having gone through the statement made under Section 161 Code of Criminal Procedure, it transpires that it was the deceased who while going on the embankment abused everybody under the influence of liquor and at that time, the Appellant was also going through the same way. Seeing the Appellant on the embankment, the deceased also started to abuse him. Such unnecessary abuse from the deceased infuriated the Appellant and out of sudden provocation for such reason, he assaulted the deceased with the bamboo split, which is generally used by the village people at night. 20. In view of the above, we have no hesitation to-hold that the appellant had no intention to assault the deceased. Such unnecessary abuse from the deceased infuriated the Appellant and out of sudden provocation for such reason, he assaulted the deceased with the bamboo split, which is generally used by the village people at night. 20. In view of the above, we have no hesitation to-hold that the appellant had no intention to assault the deceased. Having considered the above discussed aggravating and mitigating circumstances so emerged from the evidence of the witnesses including the statement of the appellant made under Section 161 Code of Criminal Procedure, we are of the view-that the conviction of the Appellant under Section 302 IPC is not tenable in law and it is in our humble opinion, a case under Section 304Part-I IPC. Accordingly, we set aside the conviction and sentence of the Appellant under Section 302IPC and accordingly, convict the Appellant under Section 304 Part-I IPC. Modifying his sentence for imprisonment for life we sentence him to undergo imprisonment for 10(ten) years. 21. In the result, the appeal stands partly allowed to the extent of modification of conviction and sentence as indicated above. 22. Send down the lower court records. 23. Before parting with this case, we would like to place on record our appreciation to Ms. S. Khataniar, learned Amicus Curiae for her valuable assistance to the Court in arriving at the decision abovementioned. Accordingly, we order that she is entitled to get her professional fees, which is quantified at Rs. 5,000/- (Rupees five thousand only).