JUDGMENT P.K. Musahary, J. 1. This is a case of intriguing death of a house wife in the night of 19.1.2000 at about 10.30/11.00 PM in her own house while living with her husband and seven children. The husband of the lady disappeared soon after the incident. His younger brother lodged an Ejahar with the local Police Station on the next day i.e. 20.1.2000 at 4 P.M. informing about the incident and stating, inter alia, that the appellant used to beat his wife frequently and he had done her to death. A case being Barpeta Road P.S. Case No. 13/2000, thus, came to be registered against the appellant u/s. 498(A)/302 IPC. The I.O. visited the place of occurrence, held inquest over the dead body, recorded the statements of witnesses and sent the dead body for post mortem examination. The investigation culminated into submission of charge-sheet against the appellant u/s. 498(A)/302 IPC, committal of the case by the Magistrate to the Court of Sessions, Barpeta for trial and registration of Sessions Case No. 18/2007. The learned Sessions Judge, on consideration of the materials and upon hearing the parties, framed charge u/s. 302 IPC against the appellant to -which, on being read over and explained, he pleaded not guilty and claimed to be tried. The appellant, accordingly, stood the trial. The prosecution, in order to prove the charge, examined as many as 9 witnesses including the Investigating Officer. No witness was examined by the appellant in his defence although he was given the chance to do so after examining him u/s. 313 Cr.P.C. The defence maintained a stand of complete denial of the charge. The learned trial court, on the basis of evidence on record and upon hearing the parties, rendered the judgment dated 19.9.2007 in the aforesaid Sessions Case convicting the appellant and sentencing him to undergo R.I. for life with a fine of Rs. 2,000/- and in default, to suffer R.I. for another two months for committing offence punishable u/s. 302 IPC. The appellant has preferred the instant appeal against the above judgment 2. We have heard Mr. K. Goswami, learned counsel, appearing for the appellant and Mr. K.A. Mazumdar, learned Addl. PP., Assam, for the Respondent-State. 3. We have been taken through the evidence of prosecution witnesses and other documentary evidence on record. The appellant has preferred the instant appeal against the above judgment 2. We have heard Mr. K. Goswami, learned counsel, appearing for the appellant and Mr. K.A. Mazumdar, learned Addl. PP., Assam, for the Respondent-State. 3. We have been taken through the evidence of prosecution witnesses and other documentary evidence on record. We find no eye witness in this case and so it makes us to bank on the oral and circumstantial evidence available on record, for disposal of this appeal. 4. To start with, we look into the evidence of PW1, Shri Biswajit Sutradhar. He is the younger brother of the appellant and the first informant in this case. He deposed that the deceased Bhanubala was the wife of his elder brother, Adhir Sutradhar, the appellant. The incident took place in between 10.30 and 11 PM, in the night time and the dead body of the deceased was lying behind the house at a distance of 10/15 cubits. He came to know about the occurrence next morning and informed the elder brother of the deceased about the same. On arrival of elder brother of the deceased and being asked by him, he lodged an Ejahar with the police. He proved the Ejahar and his signature appearing on it. His appellant brother married the deceased long back and out of their wedlock seven children were born to them. He admitted that the Ejahar was written at his instance which was read over and explained to him and whereupon he put his signature. The prosecution declared this witness as hostile and on being cross-examined by the prosecution, admitted that in the Ejahar he made a statement to the effect that the appellant assaulted his wife Bhanubala with a lathi and killed her and thereafter fled away from his house. He also admitted in the Ejahar that statement was made to the effect that the neighbours knew that the appellant used to assault (marpit) his wife frequently. He further admitted that hearing the cry of Bhanubala he sent his wife to appellant's house at about 12 midnight who saw the deceased lying dead. He also admitted in the Ejahar that statement was made to the effect that the neighbours knew that the appellant used to assault (marpit) his wife frequently. He further admitted that hearing the cry of Bhanubala he sent his wife to appellant's house at about 12 midnight who saw the deceased lying dead. He denied the suggestion that he stated before the police that when he returned home his wife reported him that the appellant assaulted Bhanubala at about 9 P.M. as his wife (deceased) did not serve rice to his sons and daughter and, thereafter, the appellant again assaulted and on hearing the cry of Bhanubala he sent his wife and he himself also came to appellant's house and thereafter wanted to go out for calling a doctor but he was asked by his wife not to go out because Bhanubala had died. The deceased Bhanubala did not file any case against the appellant during their long over 15 years conjugal life. He himself did not desire to file any case against the appellant but he filed the FIR as insisted by the elder brother of the deceased. He went to the police station along with the elder brother of the deceased. They were asked by the police to lodge Ejahar which was written by a person who was not known to him. He again stated that he did not see any quarrel between his elder brother and his wife. He did not remember what he stated before the police. 5. PW 3, Shri Jagadish Sutradhar, is the elder brother of the deceased Bhanubala. His evidence is that one Jiban Sutradhar informed him that his sister was suffering from serious ailment and he should come immediately. He, accordingly, proceeded and on his way, he met the said Jiban Sutradhar and on his insistence, Jiban Sutradhar disclosed that appellant killed Bhanubala and fled away. He then proceeded to police station along with Jiban and on the way they met PW 1 and they all went to the police station. The Ejahar was lodged by Biswajit Sutradhar (PW 1). The police came to the house of the appellant and held the inquest in their presence. In cross examination, he admitted that he did not personally see the act of assault on her sister. The Ejahar was lodged by Biswajit Sutradhar (PW 1). The police came to the house of the appellant and held the inquest in their presence. In cross examination, he admitted that he did not personally see the act of assault on her sister. He denied the suggestion that he did not state before the police that Jiban told him that Adhir killed his sister and fled away. He also denied that he ever told the police that his sister died in the night as she was suffering from disease. 6. PW 4, Smti. Promila Sutradhar, is the wife of PW 1. Her evidence is that in the morning of the date of occurrence, while the children of Bhanubala "created hulla" she went to their house and saw the dead body of Bhanubala. The prosecution demanded to declare her as a hostile witness. She was, accordingly, declared hostile. Thereafter, on being cross- examined by the prosecution, she denied the suggestion that she ever stated before the police that Adhir used to torture his wife under influence of liquor and on the night of occurrence at about 7 PM, while Bhanubala was cooking her food at the courtyard, Adhir assaulted his wife with a lathi at about 12.00 midnight and while Bhanu created hulla, she was sent by her husband to Bhanu's house and after arriving at Bhanu's house, she found her lying and she was told by Hanu (PW 6), eldest son of the deceased that his father assaulted his mother. She also denied that she ever told police that Adhir assaulted his wife. She deposed that Bhanu was suffering from stomach trouble and as such she was weak. She did not see any quarrel between Adhir and his wife Bhanu. PW 5, Jiban Sutradhar stated that his house situates at a distance of 2/3 furlong from the house of the appellant. The appellant is not related to him. About 7 years ago, one day morning, he saw the dead body of Bhanu. On being declared hostile, in cross-examination, he stated that he was not examined by police. He denied the suggestion that he made a statement before the police that on the day of occurrence at about 11 AM he heard the cry and on being called by PW 1 and his wife, went to appellant's house where he was told by Adhir's son that his father assaulted his mother. He denied the suggestion that he made a statement before the police that on the day of occurrence at about 11 AM he heard the cry and on being called by PW 1 and his wife, went to appellant's house where he was told by Adhir's son that his father assaulted his mother. He further stated that he did not know how Bhanubala died. 7. Appellant's son Hanu Sutradhar was examined as PW 6. He stated that on the night of occurrence his mother was sleeping and in the morning he came to know that his mother expired. Police interrogated him and on being cross-examined, he stated that his mother was an ailing person. On the night of occurrence she was sleeping in the house. There was no quarrel between his father and mother and they had good relation. Sontosh Basak, PW 7, is the scribe of the FIR. He is a co-villager and his house is situated at a distance of 2/3 furlong from the house of the appellant. He got the information about the incident in the morning. He came to the place of occurrence and saw the dead body near a tube-well. He told the family members that it could be a police case. At that time the village Headman, Biswajit Sutradhar (PW1), came and met him. At their instance he prepared the Ejahar, Ext. 1. He proved his signature appearing on Ext. 1. However, he stated that in the Ejahar it was not written that the contents of the Ejahar was read over to the complainant and thereafter his signature was taken on it. 8. PW 8, Smti Remali Sutradhar, is the daughter of the appellant and the deceased. According to her deposition, she was not married at the time of occurrence. Her mother was a patient. After getting up from the bed, she saw her mother had expired. She did not know when her mother expired. In cross-examination, she stated that her father (appellant) lived with them at the time of occurrence. She reiterated that her mother was ailing. She did not know if there was any quarrel between his father and mother. She did not see any quarrel between them. 9. The medical officer, Tilak Pathak was examined as PW 2. In cross-examination, she stated that her father (appellant) lived with them at the time of occurrence. She reiterated that her mother was ailing. She did not know if there was any quarrel between his father and mother. She did not see any quarrel between them. 9. The medical officer, Tilak Pathak was examined as PW 2. He testified that he performed the post mortem examination on the dead body of Bhanubala Sutradhar on 21.1.2000 at Barpeta Civil Hospital on police requisition. He also testified that he prepared a report. He proved the P.M. report marked as Ext. 2 and his signature as Ext. 2(1). In the said P.M. report he recorded as under: A female body, average built about 35 years of age, rigor mortis present. Eyes and mouth half opened, not decomposed: A black colour small bruises seen on the back of the right side on lower part, size 3 cm X 2 cm. Fracture of the 8th rib of the right side of chest wall. Abrasion on left side of left knee joint, size 3 cm X 2 cm. Peritoneum - Full of dark colour fluid blood. Liver - Rupture of the posterior surface of liver seen. Ante mortem blood clots found on the rupture margin. In his opinion the cause of death was due to shock and hemorrhage as a result of injury she sustained. He clarified that in his report he did not mention the time of death of the deceased. In cross-examination, he stated that he did not show the cause of injuries and the nature of weapon used. He found partly digested food in the stomach of the deceased as mentioned in the report. He opined that the fracture of the rib and abrasion of the knee may be caused by fall but both the injuries can not be caused by one and same fall. 10. The I.O. of the case was examined as PW 9. He was working as 2nd officer on 20.1.2000. He stated that he went to the place of occurrence and found the dead body inside the house of appellant where some people had already gathered. He testified that he held the inquest and proved the inquest report, Ext. 3, and his signature, Ext. 3(1). He prepared the sketch map of the place of occurrence but it was not signed by him. He testified that he held the inquest and proved the inquest report, Ext. 3, and his signature, Ext. 3(1). He prepared the sketch map of the place of occurrence but it was not signed by him. The accused was not found at the place of occurrence. He sent the dead body for post mortem examination. On transfer to other place he handed over the CD on 4.1.2000. After collection of the P.M. report, the succeeding I.O. submitted the charge-sheet showing the appellant as an absconder. He examined Biswajit Sutradhar (PW 1) who stated before him that earlier Adhir (appellant) used to assault his wife and this fact was known to the neighbours. PW 1, informant also stated before him that hearing the hulla he first sent his wife to appellant's house and later he himself also went there and saw Bhanubala lying dead. The said PW 1 also stated before him that when he returned from his work at about 9 PM on the day of occurrence, his wife reported him about the quarrel that had ensued between Adhir and Bhanu. During investigation he examined Promila Sutradhar (PW 4) who stated before him that Adhir used to assault his wife under influence of liquor and on the day of occurrence at about 7 AM, while Bhanu was cooking rice at the courtyard, Adhir assaulted his wife with lathi. At about 11/12 PM in the night, they heard the cry of Bhanu. As asked by her husband she came and found Bhanu lying dead in her house. Bhanu's son Hanu (PW 6) reported that his father assaulted his mother. He also stated that during investigation, he examined Jiban Sutradhar (PW 5) who stated before him that at about 11 P.M.(night), he heard the cry of Adhir's wife. Biswajit (PW 1) and his wife (PW 4) came and called him. He along with them came to Adhir's house and on arrival, sons and daughter of Adhir reported him that their mother was assaulted by their father (Adhir). In cross examination, he stated that he did not examine the wife of Jiban Sutradhar. He also stated that he did not examine Thandu and Susen although their houses are located near the house of accused Adhir. Bhanubala did not file any Ejahar earlier. PW 3, Jagdish did not state before him that Jiban told him that Adhir killed his wife and fled away. He also stated that he did not examine Thandu and Susen although their houses are located near the house of accused Adhir. Bhanubala did not file any Ejahar earlier. PW 3, Jagdish did not state before him that Jiban told him that Adhir killed his wife and fled away. The said Jagdish (brother of the deceased) stated before him that his sister had died as she was suffering from some disease. 11. The FIR (Ext. 1) was received in the police station at 4 PM on 20.01.2000 i.e. after sixteen hours from the time of occurrence at about 12 midnight of 19.1.2000. The Ejahar was lodged by none else than the younger brother of the appellant. He sent his wife to the house of the appellant when he heard the cry of the deceased from the place of occurrence. Then he himself went to appellant's house. Both PW 1 and PW 4 honestly said that they did not see the occurrence in their own eyes. At the same time they did not give any evidence to the effect that some unknown person was seen inside the house. They were not told by any member of the appellant's family that some known or unknown person entered their house and killed the deceased. On the face of this evidence, it can be held that the deceased was killed by a family member. The children could be excluded as no evidence is available against them. That leaves us only with the husband of the deceased at whom the accusing finger could be pointed inasmuch as, it is only the husband who is supposed to sleep with her in the same room in the night. The evidence is that he used to take liquor and quarrel with his wife (deceased) very often and he disappeared from his house just after the incident in a suspicious manner and he did not turn up even in the morning. Where did he go? As per the evidence on record, he remained untraced and even the police could not arrest him. The charge-sheet was submitted showing the appellant as an absconder. The appellant surrendered before the court long after submission of the charge-sheet. The conduct of the appellant in disappearing from the house in such a manner created the suspicion that he tried to avoid arrest by police. The charge-sheet was submitted showing the appellant as an absconder. The appellant surrendered before the court long after submission of the charge-sheet. The conduct of the appellant in disappearing from the house in such a manner created the suspicion that he tried to avoid arrest by police. He had denied the charge but failed to explain his conduct why he remained untraced for a long time even after the death of his wife. 12. The appellant has denied the charge, but he has not denied that he was not present at home at the time of occurrence or he was away from home for some works. In the midnight what has happened inside the room of a couples could not be seen by anybody. When one of the couple is found dead or something had happened it is for the other couple to explain or give account of the happenings inside their room. Even the children may not be able to throw light on the happenings inside the room. The appellant was present inside the room and he disappeared only when his wife died or was killed by him or somebody on the date of occurrence. The chance of killing the deceased by other person inside the room where the appellant was present, was not there and if it was the person other than the appellant who would have killed the deceased, the appellant would have fought back and tried to save his wife from the perpetrator. We have found a completely reverse situation in this case which has, rather built a circumstantial evidence against the appellant. These circumstances give the scope of drawing a legal inference that the appellant committed murder of his wife on the night of occurrence and he fled away from his own house to avoid arrest and obvious punishment. 13. The prosecution witnesses, particularly, PW 1, 4 and 5, who were declared hostile, sought to prove that the appellant is innocent and they tried to change their stand taken at the initial stage regarding the facts of appellant taking liquor and picking up frequent quarrel with his wife. The later stand taken by them is not acceptable inasmuch as the I.O. of the case (PW 9) completely impeached their evidence by confirming their earlier statement recorded u/s. 161 Cr.P.C. The said prosecution witnesses are admittedly close relatives of the appellant. The later stand taken by them is not acceptable inasmuch as the I.O. of the case (PW 9) completely impeached their evidence by confirming their earlier statement recorded u/s. 161 Cr.P.C. The said prosecution witnesses are admittedly close relatives of the appellant. PW 6, as son of the appellant, changed his earlier stand by saying in cross-examination that her mother was an ailing person and there was no quarrel between his father and mother and there was a good relation between them. P W 8, as daughter of the appellant, also stated that her mother was an ailing person. They meant to say that their mother died of illness and not due to physical assault. All the aforesaid prosecution witnesses, being the closely related persons, had the second thought during trial and before standing in the dock that the appellant was innocent and he did no crime against the deceased. We do not blame the said prosecution witnesses inasmuch as it is the normal and natural tendency of a human being to save the closely related persons from being convicted and punished for the sake of the family. We have already noted the medical evidence on record. The 8th rib of the deceased was found fractured with several other injuries on her person. This clearly belies the stand of the aforesaid related witnesses that the deceased died due to illness. The medical evidence clearly shows that the deceased was a healthy person and she was not suffering from any ailment causing sudden death to her in the night. There is nothing on record that the deceased was ever under medical treatment for her illness. The fact that the deceased succumbed to the injuries she received on the date of occurrence has been established firmly and it could not be dislodged by any other evidence. We are to accept the position that man may lie; but not the medical evidence. We could have accepted the approach of the aforesaid related witnesses if no injury was found on the person of the deceased and some evidence was led to prove that she was suffering from some ailments. The above factual position supported by medical evidence does not permit the Court to take a view that the deceased died due to her illness and she was not assaulted by anybody causing death to her. 14. The above factual position supported by medical evidence does not permit the Court to take a view that the deceased died due to her illness and she was not assaulted by anybody causing death to her. 14. On the basis of the above circumstantial evidence supported by oral evidence of the prosecution witnesses we hold that it was the appellant, as husband of the deceased, who committed homicide on his wife and he is liable to be punished. We still consider whether the appellant committed culpable homicide not amounting to murder within the meaning of Section 299 IPC to give him benefit under Section 304 Part I or II IPC. 15. From the available evidence on record it has been found proved that the appellant used to take liquor and indulge in frequent quarrel with his wife. On the night of occurrence he was in drunken condition and picked up quarrel with her. As per medical evidence he dealt several blows as a result of which the 8th rib was broken and the posterior surface of the fiver ruptured. The said injuries are undoubtedly grievous in nature and she died of the said injuries. The core question is whether the appellant dealt the blows on the deceased with intention to kill her. This is a difficult question to answer. Intention is a state of mind. Mind is always complex and chargeable at every moment The minds of literate modern men are more complex than the minds of illiterate persons. The appellant is an illiterate person of a working class. He has been living with his wife and 7 children. Habitually he takes liquor and quarrels with his wife. This is his usual life. There was nothing unusual for him to lose control over his mind and sense at the slightest displeasure over a petty matter. There is no evidence that he was provoked by the deceased in any manner. But it can easily be understood that the deceased felt disturbed and fed up with the usual drunken state of the appellant, which somehow got expressed or conveyed causing anger of the appellant and giving blows on his wife. The prosecution could not prove intention of the appellant in causing death to the deceased, except the fact that he was under the influence of liquor or intoxication at the relevant point of time. The prosecution could not prove intention of the appellant in causing death to the deceased, except the fact that he was under the influence of liquor or intoxication at the relevant point of time. Law does not excuse the offender for committing the offence under the influence of intoxication unless it is proved that he was made to get drunk by some body without his knowledge or was forced to get drunk and lost control over his mind and he did not know what he was doing. Here in this case noting of the sort had taken place and as such the appellant can not be excused by providing him the benefit of doubt under Section 85 IPC. 16. We have noticed a very unnatural and unusual manner and behavior of the appellant's children, particularly, PW 6 and 8, who were present at home at the time of occurrence but did not come forward to prevent him from assaulting their mother who screamed and cried for help and in response to that their uncle and aunt, who lived in other nearby house, came forward in the night of occurrence. The appellant could have been resisted or prevented by their children from further assaulting their mother to save her life. The ignorance of PW 6 and 8 of the fact of their mother being beaten by their father is not at all believable. They have not openly disclosed the reason, yet the possible reason is not far from being appreciated by the Court. The children must have been fed up with the usual quarrel and scuffles that have been taking place between the couple and found no reason or necessity to come forward and interfere in their affair. Scuffling was the usual way of life for the scuffle. The death of Bhanubala was a result of the usual scuffling. In such scuffling between husband and wife intention to kill could hardly be imported unless some cogent evidence is found on record proving such intention of the accused. 17. What we have found is that the appellant in the usual quarrel and scuffle exceeded the degree of assault without intention to kill the deceased. We refer to the provisions under Section 304 IPC. The Apex Court in Camilo Vaz Vs. 17. What we have found is that the appellant in the usual quarrel and scuffle exceeded the degree of assault without intention to kill the deceased. We refer to the provisions under Section 304 IPC. The Apex Court in Camilo Vaz Vs. State of Goa, reported in (2000) 9 SCC 1 while discussing the provisions under the aforesaid Sections of law, observed that: this Section is in two parts. If analysed, the Section provides for two ingredients of punishment to two different situations: (i) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the "intention"; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on a vital part of the body with such force that a person hit meets with death, knowledge has to be imputed to the accused. In that case, the case will fall under Part II of Section 304 IPC.... In our considered view, in the present case, the intention to kill the deceased having not been proved and no dangerous weapon was used with intention to kill, the appellant could be held guilty under Section 304 Pt. II IPC, instead of holding him guilty under Section 302 IPC. The appellant, accordingly, stands convicted under Section 304 Pt. II IPC. In the facts and circumstances of the case, in our considered view, the interest of justice would be met if the appellant is made to suffer R.I. for 10 years with fine of Rs. 1,000/-(Rupees one thousand) only, in default to suffer R.I. for 1 (one) month is ordered for committing the offence punishable under Section 304 Pt. II IPC. Ordered accordingly. 18. The appeal stands partly allowed with modification and alteration in the order of conviction and sentence as indicated above. The appellant shall serve out the sentence of 10 years R.I. with benefit of set off for the period of his detention during trial. The learned Amicus Curiae be paid an amount of Rs. 5,000/- (Rupees five thousand) as his legal fee for rendering the legal service. Return the LCR forthwith.