JUDGMENT By Court.-Yesterday on 12.7.2011 when Mr. Jalisur Rahman learned counsel appearing for the appellant submitted that he has got no instruction from the appellant, he being a panel counsel in the High Court Legal Services Committee was appointed as amicus curiae to assist the Court, and then he was heard on behalf of the appellant and Mr. T. N. Verma on behalf of the State, and it was kept for further hearing to-day. 2. This appeal arises against the judgment of conviction and order of sentence dated 14.11.2002 passed by Sri Chamru Tanti, 4th Additional Sessions Judge, Dumka in Sessions Case No. 86 of 1999 convicting the appellant under Sections 302 of IPC and sentencing him to undergo R.I. for life. 3. The prosecution case in short is that on 5.1.1999 at about 7:00 a.m. Suniram Tuddu (deceased), the husband of the informant Sarola Murmu (PW 3) had gone to attend the call of nature. After half an hour she heard hue and cry. She came out with Mucharu Tuddu (PW 2) Paulus Tuddu (PW 8) and saw that the appellant was assaulting Suniram Tuddu by leg and he had iron Dav (Sickle an instrument for cutting) in his hand. She tried to rescue his husband but the appellant pushed her and made Suniram Tuddu fall on the ground by giving blow on leg and mounted on his chest; and assaulted on his neck by Dav due to which neck of Suniram Tuddu was cut and then he died. Several persons assembled, but as the appellant was having Dav in his hand, nobody intervened and the appellant fled away. It is further alleged that the appellant used to make false allegation against the deceased that he had illicit relation with the wife of the appellant and he was accordingly threated with dire consequences about which her husband had complained before the villagers. On this, the village pradhan had gone to the house of the appellant and settled the matter. 4. Counsel for the appellant submitted that at best the appellant could be convicted under Section 304 of IPC. He further submitted that the mental state of the appellant cannot be ignored. He referred to (1987) 2 SCC 14 , Gurdip Singh & Anr. v. State of Punjab and 1997 Cr LJ 2441, Sadre Alam Mullick v. State. 5. On the other hand, State counsel supported the impugned judgment. 6. He further submitted that the mental state of the appellant cannot be ignored. He referred to (1987) 2 SCC 14 , Gurdip Singh & Anr. v. State of Punjab and 1997 Cr LJ 2441, Sadre Alam Mullick v. State. 5. On the other hand, State counsel supported the impugned judgment. 6. It appears that the appellant in his confession inter- alia said that on 5.1.1999 in the morning at about 7:30, when he was going with Dav for cutting bamboos, he saw the deceased- Suniram Tuddu passing through his house, when the appellant asked him as to why he was having illicit relationship with the wife of the appellant which was denied by Suniram. On this the appellant became angry and fell Suniram on the ground by hitting him on leg. It is further said that Suniram abused him with filthy language and on this, the appellant who was having Dav in his hand assaulted Suniram with it on his neck. On halla when the villagers assembled, he fled away and concealed the Dav in his house. 7. It appears that on such confession, the Dav was recovered. PW 1, is the doctor who found three incised wounds on the person of the deceased. The injury No. 1 was on the neck and was fatal. Injury No. 2 was on the right shoulder and injury No. 3 was on the left shoulder. He opined that the death was due to injury No. 1 which was sufficient to cause death in ordinary course of nature and it could be caused by sharp cutting weapon such as Dav (Sickle). Mucharu Tuddu PW 2 claims to be one of the eye-witnesses. She inter-alia said that at the time of occurrence there was quarrel between Suniram and the appellant during which the appellant assaulted him due to which Suniram died. The cause was that the appellant suspected that Suniram had illicit relation with his wife. PW 3 who is the informant and another eye-witness, supported the prosecution case. She also said that the appellant and Suniram both were quarreling and when she went to the place of occurrence, she found Suniram lying on the ground with neck cut. If the evidence of PW 3 is read as a whole, it will not be safe to accept her as one of the eye-witnesses. PW 4 is the hostile witness. She also said that the appellant and Suniram both were quarreling and when she went to the place of occurrence, she found Suniram lying on the ground with neck cut. If the evidence of PW 3 is read as a whole, it will not be safe to accept her as one of the eye-witnesses. PW 4 is the hostile witness. PW 5 inter-alia said that when he came with the police officer, he found the deceased lying. If the evidence of this prosecution witness is read as a whole, it seems doubtful that he is one of the eye-witness of the occurrence. PWs 6 & 7 are hearsay witnesses. PWs 8 and 9 both claimed to be eye-witnesses. They have inter-alia said that before the appellant had inflicted injury on Suniram, there were quarrel/marpeet between them, but these two PWs also said that when they went at the place of occurrence, they found the deceased lying on the ground. PW 10 is the I.O. and PW 11 is the hearsay witnesses. 8. From the materials on record, it appears that the appellant had suspicion that Suniram had illicit relation with his wife. There was altercation/quarrel/marpeet between the appellant and Suniram before the appellant gave Dav blows on the deceased. Injury No. 1 is the only fatal injury on the neck. The factum of quarrel/marpeet is said by all the witnesses and is corroborated with the confessional statement in which the appellant had said that Suniram abused him in filthy language during quarrel. 9. In our opinion, this case will fall under Exception 4 of Section 300 of IPC After considering the entire materials on record carefully, the conviction under Section 302, IPC is altered into Section 304, Part I of IPC. So far as the sentence is concerned, it was informed that the appellant has remained in jail for more than 12 years by now. Accordingly, he is sentenced to the period already undergone in imprisonment. In the result, this appeal is partly allowed with alternation in conviction and modification in sentence as aforesaid. The trial Court is directed to issue modified conviction warrant, so that the appellant is released from jail without any delay, if not wanted in any other criminal case. Appeal partly allowed.