JUDGMENT T. Nandakumar Singh, J. 1. The Appellant-accused Sri Sushendra @ Sushai Deb, faced Sessions Trial No. 8 (WT/K) of 2002 before the learned Addl. Sessions Judge, Khowai, West Tripura for the incident on 13.08.1999 in which one Gopal Suklabaidya was killed. In this Sessions Trial the Appellant-accused was charged along with one Ranjit Gaur for the offence punishable under Section 302 read with Section 34 of the IPC. After M length trial the teamed Addl. Sessions Judge, vide impugned judgment and sentence dated 13.07.2005 convicted the Appellant-accused for the offence punishable under 302 and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 2,000/- in default of payment of fine to undergo simple imprisonment for two months for commission of offence under Section 302 read with Section 34 IPC. Being aggrieved\Appellant-accused filed the present appeal. 2. Heard Mr. D.C. Roy, learned Counsel for the Appellant-accused and also Mr. D. Sarkar, learned senior P.P., Tripura appearing on behalf of the Respondent. 3. The prosecution story as unfolded during trial is briefly noted. The informant, Sri Gouranga Suklabaidya O.P.W. 5) lodged an Ejahar to the O.C., Khowai Police Station stating that on 13.08.1999 (Friday) at about 7 p.m. his younger brother Gopal Suklabaidya (deceased) had gone to Dhabil with Amrit Achaijee (P.W. 4) in search of labourers to work in field; and he did not return on that day and he and Ors. searched for him. On 15.08.1999 in the morning the informant Sri Gouranga Suklabaidya (P.W. 5) met Gangaram Gour of Dhalabil (P.W. 6) who stated that dead body of the Petitioner's brother, Gopal Suklabaidya was lying in the well. Immediately thereafter they went to the well and saw dead body of his brother Gopal Suklabaidya (deceased) lying in the well. It is also stated in the FIR that on Friday, i.e. 13.08.1999 at about 8 p.m. a quarrel took place between his brother Gopal Suklabaidya and Appellant-accused Sri Sushendra @ Sushai Deb and Anr., Ranjit Gour (now absconder) in the house of Smt. Janaki Gour of Dhalabil. On being asked Smt. Janaki Gour stated that last Friday at about 8 p.m. in the night Appellant-accused and Ranjit Gour had assaulted the deceased with lathi and torchlight. 4. On being asked Smt. Janaki Gour stated that last Friday at about 8 p.m. in the night Appellant-accused and Ranjit Gour had assaulted the deceased with lathi and torchlight. 4. On receiving the said Ejahar, O.C., Khowai registered a case being Khowai P.S. Case No. 52/99 under Sections 302/201 read with Section 34 IPC against the Appellant-accused and Anr. Shri Ranjit Gour (absconder). On registration of the said FIR, machinery of investigation had started. After completing investigation charge sheet was submitted against the Appellant-accused and Shri Ranjit Gour before the concerned Magistrate, who committed the case before the learned Sessions Judge for trial for the offence under Section 302 triable exclusively by the Sessions Judge. On receipt of the charge sheet, learned Sessions Judge framed charge against the accused-Appellant and Anr. Shri Ranjit Gour for the offence punishable under Section 302 read with Section 34 IPC; to which the Appellant-accused denied the charge and claimed for trial. 5. The prosecution, in order to bring home charge examined as many as 11 witnesses. From the side of the prosecution, it appears that P.W. 4- Shri Amrit Achaijee is the eye witness, P.W. 6- Shri Gangaram Gour, P.W. 3-Shri Jaleswari Gour, P.W. 7-Shri Sankar Shil and P.W. 8-Shri Kiran Suklabaidya were residing at immediate nearby place of the occurrence. Therefore, it appears that the prosecution had tried to bring home the charge against the Appellant-accused by relying on the statements of witnesses mentioned above. P.W. 5-Gouranga Suklabaidya, the informant in his statement before the Court stated that on 13.08.1999 at about 7 p.m. his brother Gopal Suklabaidya (deceased) along with his neighbour Amrit Acharjee (P.W. 4) went to the house of Mrs. Janaki Gour at Dhalabil in search of labourers. As he did not return home at that particular night, next day morning he started searching for his missing brother. In course of search, he met Gangaram Gour- P.W. 6 who told him that on the previous night at around 8 p.m. there had been a quarrel between his brother Gopal Suklabaidya (deceased) in one side and the accused Ranjit Gour and Sushendra Deb on the other side. He further stated that the said Gangaram Gour- P.W. 6 had told him that dead body of his deceased brother had been lying in the abandoned well of Debendra Debnath of Dhalabil. He further stated that the said Gangaram Gour- P.W. 6 had told him that dead body of his deceased brother had been lying in the abandoned well of Debendra Debnath of Dhalabil. On receiving the said information, at about 10/11 a.m. he along with the co-villagers rushed to the spot and found the dead body of his brother lying in the well. On 15.08.1999 in the morning he lodged the FIR with the O.C., Khowai Police Station, who recorded his oral Ejahar on his dictation. After recording the Ejahar he put his signature on the Ejahar which is exhibited as Ext. 2. After registering the said case, police also recovered dead body of Gopal Suklabaidya and inquest report was prepared in presence of him and Gangaram Gour-P.W. 6. 6. P.W. 4- Shri Amrit Acharjee, in his examination before the Court stated that in the month of August, 1999 at about 8 p.m. he along with deceased, Gopal Suklabaidya went to the house of Mrs. Janaki Gour about quarter a mile away from his house in search of labourers. While they were talking with Mrs. Janaki Gour, the accused, Ranjit Gour and Sushendra Deb suddenly appeared there and started making altercation with the deceased Gopal Suklabaidya. But he could not say what was the bone of contention between them; and all of sudden, Ranjit Gour, (accused absconder) and Appellant-accused Sushendra Deb assaulted Gopal Suklabaidya (deceased) with lathi and he also tried to rescue (deceased) Gopal Suklabaidya; but he was also beaten up by Ranjit Gour; so for fear of his life fled the spot leaving Gopal Suklabaidya (deceased) alone. On the following day he came to learn that the dead body of Gopal Suklabaidya was recovered from an abandoned well. He also identified Appellant-accused Sushendra Deb in the Court by the name and face. 7. From the statement of P.W. 4, it appears that he corroborated the material fact in the statement of the informant. P.W. 5-Gouranga Suklabaidya to the extent that he along with the deceased at about 7 p.m. in the month of August, 1999 went to the house of Janaki Gour at Dhalabil in search of labourers and while they were taking together with Mrs. P.W. 5-Gouranga Suklabaidya to the extent that he along with the deceased at about 7 p.m. in the month of August, 1999 went to the house of Janaki Gour at Dhalabil in search of labourers and while they were taking together with Mrs. Janaki Gour, the accused-Appellant, Ranjit Gour (absconder-accused) and Appellant- accused, Sushendra Deb suddenly appeared and started making altercation with the deceased and suddenly the Appellant-accused and Ranjit Gour (absconder) assaulted the deceased with lathi. 8. P.W. 3, Smti. Jaleswari Gour also stated when she was examined as witness on 30.04.2005 stated that about 5/6 years ago on a certain night at around 8 p.m. on hearing hue and cry she came out of her house and saw, Ranjit Gour (accused absconder) and the Appellant-accused Sushendra Deb giving fist and blow to the deceased Gopal Suklabaidya near the house of Shri Gangaram Gour-P.W. 6. On sensing that some untoward incident might happen, she left for her house. After two days of the said incident, on search, the dead body of Gopal Suklabaidya (deceased) was recovered from a well. She could identify the Appellant-accused Sushendra Deb by face in the Court. 9. P.W. 7, Shri Sankar Shil stated that about five years back on a certain night he was told by the brother of the deceased Gopal Suklabaidya that his brother did not return home till late night, they made a thorough search for his missing brother (deceased). On 15.08.1999 in the morning he learnt that the deadbody of the deceased had been recovered from an abandoned well at Dhalabil. He also stated that with many villagers including himself went to the spot. He further stated that at the time of recovery of the deadbody he was present nearby the spot. 10. P.W. 8, Kiran Suklabaidya also stated that about 5 and 1/2 years ago, on a certain day, the dead body of Gopal Suklabaidya was recovered by the police from a well. Both P.Ws. 7 and 8 had been declared hostile by the prosecution and allowed to be cross examined by the prosecution. From the statements of P.Ws. 7 and 8 it is clear that the dead body of the deceased was recovered from the abandoned well of Debendra Debnath on 15.08.1999 and dead body was recovered in their presence by the police. 11. 7 and 8 had been declared hostile by the prosecution and allowed to be cross examined by the prosecution. From the statements of P.Ws. 7 and 8 it is clear that the dead body of the deceased was recovered from the abandoned well of Debendra Debnath on 15.08.1999 and dead body was recovered in their presence by the police. 11. Such material fact of recovery of the dead body of the deceased from the abandoned well of Debendra Debnath was corroborated by P.Ws. 7 and 8. 12. By the Criminal Law (Amendment) 2005, Act No. 2 of 2006, Section 154 of the Indian Evidence Act, 1872 had been amended by inserting Clause (ii) which read as follows: (2) Nothing in this section shall disentitle the person so permitted under Sub-section (1), to rely on any part of the evidence of such witness. 13. On bare perusal of the newly amended Section 154 of the Indian Evidence Act, it is clear that the prosecution can still rely on the part of the evidence of the hostile witness. Regarding this point we may refer to the decision of the Apex Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat : AIR 2000 SC 210 wherein the Apex Court held that evidence of hostile witness to the extent to which it support prosecution witness can be relied on'. Para 5 of the AIR in Koli Lakhmanbhai Chanabhai's case (supra) read as follows: 5. From the aforesaid evidence on record, in our view, it cannot be said that the High Court erred in relying upon some portion of the evidence of P.W. 7 who was cross-examined by the prosecution. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. [Re: Bhagwan Singh v. State of Haryana (1976) 1 SCC 389 : ( AIR 1976 SC 202 : 1976 Cri LJ 203) and Sat Paul v. Delhi Administration (1976) 1 SCC 727 : ( AIR 1976 SC 294 : 1976 Cri LJ 295)]. [Re: Bhagwan Singh v. State of Haryana (1976) 1 SCC 389 : ( AIR 1976 SC 202 : 1976 Cri LJ 203) and Sat Paul v. Delhi Administration (1976) 1 SCC 727 : ( AIR 1976 SC 294 : 1976 Cri LJ 295)]. In the present case, apart from the evidence of P.W. 7, the prosecution version that he saw that Appellant was having knife in his hand and was quarrelling with the deceased gets corroboration from the evidence of P.Ws. 11 and 12 to whom he disclosed the incident immediately: On the basis of the said information, within one hour, FIR was lodged disclosing the name of the Appellant as the person who has inflicted the knife blow. Number of incised wounds are found as per the post-mortem report. The prosecution version gets further corroboration from discovery of Muddamal knife containing human blood Group 'A'. Further the bush-shirt and baniyan which were put on by the accused at the time of incident were having extensive blood-stains which were also found containing human blood Group 'A'. Learned Counsel for the Appellant, however, contended that accused is also having blood Group 'A' and that he was having injury on the thigh as per the evidence of the Doctor. In our view, there is no substance in his contention because as per the medical evidence, the injuries caused to the accused were minor and that because of such injuries, there would not be extensive blood stains on the bush-shirt and baniyan put on by the accused. In his 313 statement also, accused has not explained how he got blood stains on his bush-shirt and baniyan. He has also not denied the recovery of the said bush-shirt and baniyan from his person at the time of his arrest. 14. The Apex Court is also of similar view in the case of Leela Srinivasa Rao v. State of Andhra Pradesh: AIR 2004 SC 1720 that declaration of a witness hostile by the prosecution does not result in automatic rejection of the evidence; even evidence of hostile witness, if it finds corroboration from facts of case may be taken into account while judging guilt of accused. Para 14 of the AIR in Leela Srinivasa Rao's case (supra) read as follows: 14. Para 14 of the AIR in Leela Srinivasa Rao's case (supra) read as follows: 14. We have earlier noticed the evidence examined by the prosecution in support of its case that the deceased was treated with cruelty by both the accused. However, the witnesses including the father of the deceased have not supported this case. In fact, the father of the deceased namely, P.W. 1, in his deposition stated that misunderstandings arose between his daughter and her husband on account of the fact that the three children of the deceased sister of the Appellant were being brought up in the house of the Appellant which was objected to by the deceased. If in those unfortunate circumstances the three children of the deceased sister of the Appellant were being brought up in his family, one cannot blame the Appellant or his parents for having shown compassion towards the children of his deceased sister. If that is what caused annoyance to the deceased, one cannot equate such conduct with cruelty or harassment. We also find no reason why on this aspect of the matter the father of the deceased should not speak the truth. In any event, he and his family members were the only persons who could have deposed about the treatment meted out to the deceased. All of them have denied the suggestion that the Appellant or his mother in-law treated the deceased with cruelty. The fact that these witnesses have been declared hostile by the prosecution, does not result in the automatic rejection of their evidence. Even the evidence of a hostile witnesses if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. In any event, if their evidence is kept out of consideration, there is no other evidence to prove the prosecution allegation of cruelty and harassment meted out to the deceased. Having regard to the inconsistence in the two dying declarations we do not find it safe to act solely on them to convict the Appellant, and for that reason even accused No. 2, the mother of the Appellant who has since served out her sentence. 15. In the present case, even if P.Ws. Having regard to the inconsistence in the two dying declarations we do not find it safe to act solely on them to convict the Appellant, and for that reason even accused No. 2, the mother of the Appellant who has since served out her sentence. 15. In the present case, even if P.Ws. 7 and 8 had been declared hostile, their statement which had corroborated the fact of recovery of dead body of deceased, Gopal Suklabaidya from the abandoned well of Debendra Debnath can be considered for supporting the prosecution case. It is the case of the prosecution that the dead body of the deceased was recovered from the abandoned well of Debendra Debnath, and as such, P.Ws. 7 and 8 also corroborated the statements of P Ws 4 and 6. 16. P.W. 11, Dr. Samir Kr. Das stated that on 15.08.1999 when he was posted as Medical Officer in the Khowai Sub-Divisional Hospital at 2.50 p.m. as per requisition of Khowai Police, held post mortem examination over the dead body of deceased Gopal Suklabaidya of Samatal Padambil. On examination of the dead body he found the folio wing injuries: 1) One lacerated wound over the right side of the scalp measuring 5 cm x 2 cm x 1 cm; 2) Two marks of abrasion - one over the right side of chest and Anr. over the left side of chest. 17. According to his opinion the cause of death was due to cardio respiratory failure due to the injuries sustained by the deceased. Post mortem report is also exhibited as Ext. 7. 18. On appreciation of the said P.W. 11, Dr. Samir Das, it appears that the deceased had suffered only one vital blow over the right side of the scalp. 19. On careful consideration and examination of the statements of P.W. 3-Smti Jaleswari Gour, P.W. 5-Shri Gouranga Suklabaidya, P.W. 6-Shri Gangaram Gour and P.W. 7-Shri Sankar Shil, it is clear that there was altercation at the drinking den, i.e. at the house of Mrs. Janaki Gour and all of a sudden there was some altercation between the deceased Gopal Suklabaidya, on one side and the accused-Appellant Sushendra Deb and Ranjit Gour (accused-absconder) on the other side. In the course of altercation Sushendra Deb, accused-Appellant all on a sudden gave a blow on the head of the deceased, Gopal Suklabaidya. 20. Mr. Janaki Gour and all of a sudden there was some altercation between the deceased Gopal Suklabaidya, on one side and the accused-Appellant Sushendra Deb and Ranjit Gour (accused-absconder) on the other side. In the course of altercation Sushendra Deb, accused-Appellant all on a sudden gave a blow on the head of the deceased, Gopal Suklabaidya. 20. Mr. D.C. Roy, learned Counsel for the Appellant-accused strongly urged that there was no intention for causing death or murder of the deceased by the accused-Appellant inasmuch as there is no evidence for meeting of the mind of Appellant-accused Sushendra Deb and the accused-absconder for murdering the deceased (Gopal Suklabaidya). It is the further case of the learned Counsel for the appellant-accused that the present case comes under Exception No. 4 of Section300 of the IPC which read as follows: Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken under advantage or acted in a cruel of unusual manner. 21. We have also perused the statements of witnesses as to whether there is evidence to show that there was intention on the part of the Appellant-accused to murder the deceased. No doubt, there cannot be direct evidence for proving the intention, but the intention is to be gathered from the circumstances. In other words intention is cumulative effect of the evidence produced by the prosecution witnesses and, accordingly, evidence as to whether there was an intention on the part of the Appellant-accused to murder the deceased Gopal Suklabaidya is to be gathered from all the evidence produced by the prosecution. On perusal of prosecution witnesses. It appears that there is no evidence for intention on the part of the Appellant-accused to murder the deceased. On the other hand as per evidence available on record there was sudden provocation because of altercation between the Appellant-accused and Anr. accused absconder on one side and the deceased on the other side in the drinking den, at the house of Janaki Gour and as a result, Appellant-accused gave a blow on the head of the deceased. And as per the statement of P.W. 11, the doctor, who performed post mortem examination on the dead body of the deceased and post mortem report i.e. Ext. And as per the statement of P.W. 11, the doctor, who performed post mortem examination on the dead body of the deceased and post mortem report i.e. Ext. 7 it appears that there was only one blow from the side of the Appellant-accused which happened to be landed on the head of the deceased, Gopal Suklabaidya. 22. From appreciation of the witnesses we are of firm view that prosecution could prove the prosecution case beyond reasonable doubt that the Appellant-accused and accused-absconder are the authors of the crime which resulted to death of the deceased. But the question is if there is evidence as to whether the Appellant-accused is liable to be punished for the offence under Section302 or culpable homicide not amounting to murder under Part-n of Section 304 of the IPC. 23. As stated above, since there is no material evidence for proving that the Appellant-accused had the intention to murder the victim (deceased) but there are material evidence that there were exchange of words and altercation at the drinking den, we are of considered view that the offence committed by the Appellant-accused comes under Part-II of Section 304 of the IPC. 24. Mr. D.C. Roy, learned Counsel for the Appellant-accused by drawing attention of this Court to the record of the case contended that the Appellant-accused had already been in jail in connection with the present case for more than 6 years as on today. 25. For the foregoing reasons, the Appellant-accused is convicted for the offence punishable under Part-II of Section 304 IPC. Regarding sentence part, we have given our anxious consideration to the submission of learned Counsel for the parties and is of view that it would be just and appropriate to convict and sentence the Appellant-accused for the period he had undergone. In the result, the appeal is partly allowed and Appellant- accused shall be set at liberty if he is not wanted in connection with any other case. 26. Registry is directed to send copy of this judgment and order to the learned Sessions Judge and the concerned Magistrate for information and necessary action. No order as to costs. Appeal partly allowed.