JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal is directed against the judgment and order, dated 16-07-2008, passed, in Sessions Case No. 1 of 2006, by the learned Additional Sessions Judge (FTC), Biswanath Chariali, convicting the accused-appellant, Moina Barman @ Manab, under Section 302, IPC and sentencing him to undergo imprisonment for life and pay a fine of Rs. 1,000/- and, in default of payment of fine, suffer simple imprisonment for a period of 60 days. The case of the prosecution, as unfurled at the trial, may, in brief, be described as under: Deceased Tapan Barman was elder brother of the accused Moina Barman, Tapan Barman being married to P.W. 1 and having a son and a daughter. On 17/07/2005, at about 8.00 p.m., accused gave blows by means of dao, on Tapan Barman causing several injuries. Hearing hullah, the neighbours came and injured 'Tapan Barman was taken to the hospital, but, while being carried to hospital, Tapan Barman died. Information, in writing, with regard to the occurrence, was, then, lodged, at Balichand out post, on the following day, i.e., all 18/07/2005, by Hara Krishna Barman, father of the accused as well as the deceased. Based on the information, so lodged, and treating the same as First Information Report (in short, 'FIR'), Biswanath Chariali Police Station Case No. 158/2005, under Section 302, IPC, was registered against the accused. During investigation, police visited the place of occurrence, held inquest over the said dead body and arrested the accused, who made judicial confessional. Upon completion of investigation, police laid charge-sheet, under Section 302, IPC, against the accused-appellant. 2. At the trial, when a charge, under Section 302, IPC, was framed against the accused-appellant, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 15 (fifteen) witnesses. The accused was, then, examined under Section 313, Cr PC. Upon completion of investigation, police laid charge-sheet, under Section 302, IPC, against the accused-appellant. 2. At the trial, when a charge, under Section 302, IPC, was framed against the accused-appellant, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 15 (fifteen) witnesses. The accused was, then, examined under Section 313, Cr PC. While the accused admitted that he had killed his elder brother, Tapan Barman, by moans of dao, his case was that the said deceased used to often misbehave and assault him (accused) and her sister-in-law (i.e., the widow of the said deceased) and that on the day of the occurrence, too, the accused came home in drunken State and created disturbance and also assaulted him (accused) and, on being so assaulted, he (accused), having lost his self-control, picked up a dao, which was lying on a table, gave a few blows with dao on his elder brother and that was how his elder brother, Tapan Barman, was killed. No evidence was adduced by the defence. 4. Having, however, found the accused guilty of the offence charged with, learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal. 5. We have heard Mrs. A. Devi, learned Amicus Curiae, and Mr. D Das, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it may be noted that the doctor (P.W. 10), who, admittedly, conducted post mortem examination, on 18-07-2005, on the dead body of Tapan Barman, found as follows: External Appearance: Built: Average. Rigor Mortis present. Eyes closed. Mouth half opened. Face -Cyanosed, Lips livid. Injuries: (i) An oblique incised wound starting from left side of neck, 1/2" below the left ear to the left side of the chin about 5" x 2" x 1" in size. It cuts the muscles, blood vessels and the mandible completely (ii) An incised, oblique wound over posterior part of the left shoulder, about 2" x 1" x 1/2" in size (iii) An incised oblique wound over left lumbar region about 1" x 1/2" x =" in size. Cranium and spinal canal: NAD Thorax: Heart: Empty. Vessels: Collapsed. Abdomen: Stomach and its contents: Undigested food materials found. Cranium and spinal canal: NAD Thorax: Heart: Empty. Vessels: Collapsed. Abdomen: Stomach and its contents: Undigested food materials found. More detailed description of injury or disease: There are signs of extensive haemorrhage and standing of the tissue in respect of all the injuries. The injuries are ante-mortem in nature. 7. In the opinion of the doctor, shock and haemorrhage, resulting from the injuries sustained by the said deceased, became the cause of death. 8. Though the doctor was cross-examined by the defence, nothing could be elicited to show that his findings, as regard the injuries sustained by the said deceased, and his opinion, with regard to the cause of death, were incorrect or untrue. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence of the doctor (P.W. 10). 9. We, therefore, hold that the said deceased had sustained three incised wounds, as described by the doctor, the said injuries being ante mortem in nature and that the shock and haemorrhage, resulting from the injuries, so sustained by the said deceased, became the cause of the death of the deceased. 10. Bearing in mind what is indicated above, let us, first, come to the evidence of P.W. 1, widow of the said deceased. According to her evidence, on 17-07-2005, at about 8.00 p.m., while she was cooking, her husband (i.e., the deceased) was teaching their children and when she went out of the kitchen she saw the accused going out of the house with a dao in his hand and when she shouted, her father-in-law came and their neighbours, too, arrived. 11. It is in the evidence of P.W. 1 that her husband was taken to the civil hospital, Biswanath Chariali, she accompanied him, but the doctor declared her husband dead and that her father-in-law lodged the FIR. 12. It is of utmost importance to note that in her cross-examination, P.W. 1 has admitted that she had not seen the actual occurrence of assault on her husband and that she reached the room, in question, after the occurrence had taken place. It is also in the evidence of P.W. 1 that they (i.e., accused and the deceased) used to live in a joint family and that her father-in-law was sleeping in the room, where the occurrence had taken place. It is also in the evidence of P.W. 1 that they (i.e., accused and the deceased) used to live in a joint family and that her father-in-law was sleeping in the room, where the occurrence had taken place. It is not in dispute that father of the accused-appellant could not be examined as he died. 13. Bearing in mind the fact that P.W. 2 had not witnessed the assault on her husband and also the fact that she claims to have seen the accused going out of house by holding a dao in his hand, when we turn to the evidence of P.W. 3, daughter of the said deceased, who is a child witness, we notice that according to her evidence, when her father was proceeding towards kitchen to give tobacco to her mother, the accused, suddenly, gave blows on the neck and back of her father, her father fell down and the accused fled away by opening the door. It is in the evidence of P.W. 3 that her mother came to the house and she along with her mother and brother laid down her father on the bed and, upon hearing their hue and cry, neighbours came and that though her father was taken to hospital, he died. 14. In her cross-examination, P.W. 3 has admitted that she did not state before the police that the accused had come, when her father was proceeding towards the kitchen to give tobacco to her mother. In her cross-examination, P.W. 3 has also conceded that she would not be able to reveal the size of the dao used by the accused-appellant. 15. A combined reading of the evidence of P.W. 1 and P.W. 3 makes it clear that P.W. 1 had not seen the occurrence of assault on her husband and though P.W. 3 had claimed to have seen the occurrence, she could not reveal the size of the dao, which was used by the accused, and as far as P.W. 1 is concerned, she had merely seen the accused going away holding the dao in his hand. 16. 16. The question, therefore, which arises for consideration of this Court, is Whether the evidence of P.W. 1 and P.W. 3 is true and complete and their evidence can be implicitly relied upon merely because their evidence is supported by the medical evidence on record, which, we have already discussed above, shows that the said deceased had sustained three incised wounds, one on the left side of his leg, one on the posterior part of the shoulder and one on the left lumber region? 17. Our quest for an answer to the above question brings us to the evidence of P.W. 7. This witness' evidence is that when he, along with others, reached the house of the deceased, they found the dead body of Tapan Barman lying at his house. In his cross- examination, P.W. 7 has deposed, in no uncertain words, that it was a normal phenomenon in the house of the deceased that the deceased and his father usually created problems in the house by shouting and by other means after consuming liquor and that the said deceased had the habit of assaulting his brother, i.e., the accused-appellant. 18. Thus, the evidence of P.W. 7 shows that the said deceased used to take liquor and, on consumption of liquor, he used to create problem in the house by shouting and by quarreling with his family members and that he was also in the habit of assaulting, amongst others, his brother, i.e., the accused. 19. Broadly in tune with the evidence of P.W. 7, P.W. 8 and P.W. 9 have deposed that the deceased and his father, upon consumption of liquor, used to create problems in the family and that the said deceased used to assault the accused. 20. Bearing in mind the fact that the deceased was in the habit of creating problem after consuming liquor and that he also had the habit of assaulting his brother, i.e. the accused, when we turn to the judicial confession, which the learned trial Court has relied upon, we notice that in his confessional statement, the accused-appellant stated thus, "The occurrence took place at about 8.30 p.m. on the last Sunday. For the last 3/4 years, my elder brother used to assault me. Without any rhymes and reason, he used to threaten me. He used to create disturbance in the house by taking liquor. For the last 3/4 years, my elder brother used to assault me. Without any rhymes and reason, he used to threaten me. He used to create disturbance in the house by taking liquor. He also used to create disturbance to the neighbours. Even his sister-in-law, i.e., the wife of the accused, used to be disturbed by him. On the day of the occurrence, my elder brother came home, at night, in drunken state. On reaching the house, he started creating disturbance and also assaulted me (i.e., the accused), I got scared. There was a dao lying on the table, I picked up the dao and gave him blows. I gave 3/4 blows on my elder brother. Later on, witnessing blood, I lost my senses. On regaining my senses, I surrendered at the police station". 21. In the backdrop of the above confessional statement of the accused-appellant, when the evidence on record is dispassionately marshaled, what clearly emerges that the deceased was in the habit of creating disturbance in the family by taking liquor and he used to habitually assault his brother, i.e., the accused. While this position is not disputed, the dispute lies in the fact that P.W. 1 and P.W. 3, widow and daughter, respectively, of the said deceased, claim to the effect that the accused-appellant had assaulted the said deceased causing injuries on his person and while they are silent as to why the accused-appellant happened to assault his elder brother, the accused, in his confessional statement, claims that he happened to give blows, by means of dao, on his elder brother, because of the fact that his elder brother came home in drunken state, started creating problem and also assaulted him. 22. 22. In the face of the fact that P.W. 1 had, admittedly, not witnessed the assault on her husband and did not know as to what had led to the assault on her husband by the accused-appellant and the fact that P.W. 3 could not reveal the size of the dao, which the accused-appellant had allegedly used, we are of the view, if we may reiterate, that the evidence of P.W. 1 and P.W. 3 cannot be implicitly relied upon and we cannot, therefore, reject and ignore the confessional statement of the accused-appellant, particularly, when we notice that we see that the judicial confession of the accused-appellant is substantially corroborated by the evidence of independent witness, such as, P.W. 7, P.W. 8 and P.W. 9. 23. At any rate, since there are two views possible on the basis of the evidence laid before the Court, it is the evidence, which goes in favour of the defence, which has to be adopted by the Court. This aspect of law appears to have escaped completely the attention of the learned trial Court. 24. What crystallizes from the above discussion is that the accused-appellant had assaulted his brother by means of dao, because of the fact that his elder brother used to habitually create disturbance in the family by consuming liquor and used to assault him (accused-appellant) often and even on the day of the occurrence, the said deceased came home drunk and created disturbance and assaulted the accused, which made the accused- appellant lose his self-control and made him give blows, by means of dao, on his elder brother. 25. The fact of the present case, in our considered view, falls within the ambit of Exception 1 to Section 300, IPC. We hold, therefore, that the conviction of the accused-appellant, under Section 302, IPC, was not warranted by the evidence on record and the law relevant thereto and he could not have been convicted under Section 302, IPC; rather, ought to have been convicted under Section 304 (Part-I), IPC inasmuch as he happened to kill the deceased on having lost his self-control on the sudden and grave provocation, which the said deceased had provided. However, the assault by the accused-appellant, on his brother, Tapan Barman, was with intent to cause his death inasmuch as the accused-appellant used the weapon, as deadly as dao, and gave as many as three blows, one of these blows being on the vital part of the body, such as, neck. While, therefore, the conviction of the accused-appellant, under Section 302, IPC, cannot be sustained, he ought to be convicted under Section 304 (Part-I), IPC. 26. Because of what have been discussed and pointed out above, this appeal partly succeeds. The impugned conviction of the accused-appellant, under Section 302, IPC, and the sentence passed against him by the judgment and order under appeal, are hereby set aside and he is convicted under Section 304 (Part-I), IPC. 27. Considering the circumstances, which led to the commission of the offence of culpable homicide not amounting to murder, we are of the considered view that the sentence of rigorous imprisonment for a period of 10 years with fine of Rs. 1,000/-would serve the ends of justice. 28. In the result and for the reasons discussed above, the accused-appellant is hereby convicted under Section 304 (Part-I), IPC and sentenced to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of 3 months. 29. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for her valuable assistance rendered to this Court. 30. Send back the LCR with a copy of this judgment and order. With the above observations and directions, this appeal stands disposed of.