JUDGMENT B.K. Sharma, J. 1. Heard Ms. B. Bhuyan, learned Amicus Curiae. Also heard Mr. D. Das, learned APP, Assam. We have also perused the entire materials on record. This jail appeal is directed against the judgment of conviction dated 23-5-2008 passed in Sessions Case No. 144(T) 2006 by the learned Sessions Judge, Tinsukia, By the said judgment the accused-appellant has been convicted under Section 302, I.P.C. with the sentence to undergo RI for life. The period of detention of the convict during trial is to be set off. The prosecution case in brief is that on 2-4-2006, the deceased was murdered by the accused-appellant and his dead body was thrown away in the courtyard of the informant. On receipt of the FIR, Tinsukia PS Case No. 147/2006 was registered under Section 302, I.P.C. On completion of the investigation, the police submitted charge-sheet under Section 302, I.P.C. Thereafter, charge under the said section having been framed, the case was tried by the learned Sessions Judge, Tinsukia. 2. The prosecution examined 8 (eight) witnesses including the Doctor and the I.O. PW 1 is the Doctor who in his deposition stated that on 3-4-2006 while he was posted as M & HO-1 at Tinsukia Civil Hospital had performed Post-mortem examination on the dead body of the deceased in connection with Tinsukia PS Case No. 147/2006 and found as follows:-- External Appearance:-- One male dead body of average built, brown in complexion. Eyes and mouth closed. Wearing a blue colour full shirt and black colour full pant. Post-mortem hypothesis was present. Rigormortis was present all over the body. Injury: One incised wound of size 10 x 1 c.m. x bone depth was present left lateral to the neck obliquely. Apex of the wound directed upward to thyroid. Cartilage causes cut injury of neck muscle and left carotid artery and jugular vein and cut injury of body of 4th cervical vertebrae. Skull, Scalp and vertebrae:-- Scalp and skull healthy. Vertebrae -- cut injury on the body of the 4th cervical vertebrae left laterally. Membrane:-- Healthy, Brain and Spinal cord:-- Healthy. Walls, Ribs and cartilages:-- All healthy. Larynx and trachea:-- congested with blood. Right lung, left lung, pericardium and heart:-- All healthy. Abdomen:-- Abdominal wall and peritoneum healthy. Mouth, Pharynx, oesophagus:-- congested with froth. Stomach and its contents:-- contained partially digested food material mixed with 150 ml. of fluid. Membrane:-- Healthy, Brain and Spinal cord:-- Healthy. Walls, Ribs and cartilages:-- All healthy. Larynx and trachea:-- congested with blood. Right lung, left lung, pericardium and heart:-- All healthy. Abdomen:-- Abdominal wall and peritoneum healthy. Mouth, Pharynx, oesophagus:-- congested with froth. Stomach and its contents:-- contained partially digested food material mixed with 150 ml. of fluid. Alcohol like smell was detected in stomach content. Others:-- Healthy. 3. PW-3, 4, 5 and 6 are the reported witnesses who did not see the occurrence. However, PW-3 in his deposition stated that on being asked the accused-appellant he had told him that as the deceased was creating nuisance under the influence of alcohol, he killed him. He also deposed that the accused voluntarily appeared before the Police and produced a Dao (Ext. 2) before the Police which was seized. 4. It is on the basis of the evidence of PW-3 coupled with the evidence of PW-7 and the confessional statement of the accused-appellant before the PW-7, the learned trial Court has convicted the accused-appellant under Section 302, I.P.C. 5. The confessional statement of the accused-appellant was recorded by the then CJM, Tinsukia (PW-7) following the procedure in regard to recording of confessional statement. In the confessional statement, the accused-appellant stated that on the fateful day, the deceased was rebuking him with bad words and also invited to cut him if he could. Being provoked by such conduct on the part of the deceased, the accused-appellant inflicted one injury on the body of the deceased and left the place. However, the deceased succumbed to the injury sustained by him. 6. Referring to the above evidence, it is the submission of Mrs. B. Bhuyan, learned Amicus Curiae that going by the nature of the evidence coupled with the injuries inflicted by the accused-appellant on the body of the deceased, at best it could be a case falling under Section 304, Part-II, I.P.C. On the other hand, Mr. D. Das, learned APP, Assam submits that when the accused-appellant voluntarily made the confessional statement and as reflected from the same, there is nothing wrong in convicting the accused-appellant under Section 302, I.P.C. 7. D. Das, learned APP, Assam submits that when the accused-appellant voluntarily made the confessional statement and as reflected from the same, there is nothing wrong in convicting the accused-appellant under Section 302, I.P.C. 7. As noted above, the confessional statement of the accused-appellant is the primary basis of convicting the accused-appellant under Section 302, I.P.C. The learned trial Court has also found support to convict the accused-appellant as per the evidence adduced by the PW-3 before whom the accused-appellant had disclosed the reason for inflicting the injury on the deceased. As per the confessional statement he was provoked by the deceased as a result of which he had inflicted the single injury on the body of the deceased but he died. 8. In Mavila Thamban Nambiar v. State of Kerala, reported in AIR 1997 SC 687 altering the conviction from Section 302 to Section 302(H), I.P.C., the Apex Court noticing the fact that the accused had given one blow with a pair of scissors on vital part of the body of the deceased, held that although knowledge on the part of the accused that injury would cause death can be inferred, but he may not have intension to commit murder. 9. In the said case the sentence of life imprisonment that was imposed upon conviction of the accused under Section 302, I.P.C. was altered to that of imprisonment for 7 years upon conviction under Section 304(ii), I.P.C. 10. Having regard to the nature of injury inflicted by the accused-appellant coupled with the provocation made out by the deceased, we are of the considered opinion that it is not a case for conviction of the accused-appellant under Section 302, I.P.C. but instead a case for conviction under Section 304, Part-II, I.P.C. Having arrived at such conclusion, the impugned judgment of conviction and sentence stands modified to that of the conviction under Section 304, Part-II with the sentence of RI for 7 years. 11. The appeal is allowed to the extent indicated above. 12. While appreciating the service rendered by Ms. B. Bhuyan, learned Amicus Curiae, it is hereby provided that she will be entitled to a hearing fee of Rs. 5,000/- (Rupees five thousand) only to be borne by the Legal Services Authority. She will also be entitled to a copy of this judgment and order free of cost. 12. While appreciating the service rendered by Ms. B. Bhuyan, learned Amicus Curiae, it is hereby provided that she will be entitled to a hearing fee of Rs. 5,000/- (Rupees five thousand) only to be borne by the Legal Services Authority. She will also be entitled to a copy of this judgment and order free of cost. The Registry shall send the case records to the learned trial Court along with the copy of this judgment and order. Appeal allowed