JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal by the convict, who is in custody, is directed against the judgment of conviction dated 05.02.2009 passed by the learned Sessions Judge, Tinsukia, in Sessions Case No. 188(M)/2006, convicting the appellant under Section 302 IPC and sentencing him to under rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for a further period of 6(six) months. By the said judgment the learned Sessions Judge, however, acquitted Sri Jiban Karmakar of the charges both under Section 302/436 IPC. The present appellant has also been acquitted of the charge under Section 436 IPC. The prosecution story, as revealed from the first information report lodged by PW-6 Sri Kanak Koya on 15.03.2006 with the Officer-in-Charge of Pengaree Police Station, is that at about 9 P.M. on 14.03.2006 the accused appellant, a co-villager inflicted blow on the person of Dipak Koya, son of the informant, with a sharp weapon and killed him. It has also been mentioned in the said F.I.R. that Thungru Karmakar, Bhutang Karmakar and Jiban Karmakar, who are the co-villagers, are also involved in the said incident. There was also allegation of putting the dwelling house on fire. The police on receipt of the first information report registered Pengaree P.S. Case No. 14/2006 under Section 302/436/34 IPC. During investigation the police examined the persons acquainted with the facts of the case, under Section 161 Cr.P.C., seized certain articles including the dao, conducted the inquest and send the dead body for post mortem examination. On completion of investigation, charge-sheet dated 29.04.2006 was filed against the present appellant Joka Karmakar under Section 302/436/34 IPC showing the other two accused persons, namely, Thungru Karmakar and Bhutang Karmakar as absconder, against which the case has been filed. The case being exclusively triable by the Court of Sessions, the learned S.D.J.M., Margherita vide order dated 29.09.2006 committed the same to the Court of Sessions, who on 04.12.2006 framed the charge against the present appellant and Jiban Karmakar under Section 302/436/34 IPC, which when read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. The trial, therefore, has commenced. 2. During the course of trial, the prosecution in order to bring home the charges, examined 9(nine) witnesses, namely, Dr. The trial, therefore, has commenced. 2. During the course of trial, the prosecution in order to bring home the charges, examined 9(nine) witnesses, namely, Dr. Mridul Gogoi (PW-1), who conducted the autopsy on the body of the deceased and submitted the post mortem report (Ext.-1); Smt. Lakhi Mura (PW-2), the next door neighbour of the deceased; Miss Tasfia Hussain (PW-3), learned Judicial Magistrate, 1st Class, Margherita, who recorded the confessional statement (Ext.-2); Shri Dwijen Singh (PW-4), Circle Officer-cum-Executive Magistrate, Margherita, who conducted the inquest of the dead body (Ext.-3); Smt. Sabina Karketa (PW-5), who is the cousin sister of the deceased; Shri Kanak Koya (PW-6), who lodged the F.I.R. and who is the father of the deceased; Shri Johan Karketa (PW-7), brother-in-law of the deceased; Shri Nayan Karmakar (PW-8), another co-villager, who has been declared as hostile and Shri Haresh Ch. Bora (PW-9), the investigating officer. The defence, apart from cross-examination of all the witnesses examined by the prosecution, has also adduced two defence witnesses, namely, DW-1 i.e. the appellant himself and Kalu Gorh, DW-2. The statement under Section 313 Cr.P.C. was also recorded by the learned Sessions Judge. The judgment of conviction was thereafter passed by the learned Sessions Judge, based on the evidence adduced by the parties. Hence the present appeal. 3. We have heard Mr. T.J. Mahanta, learned amicus curiae, who has been engaged to argue the appeal on behalf of the accused appellant, appeal having been filed from the custody and the accused appellant being not represented by any learned counsel. We have also heard Mr. B.J. Dutta, learned Addl. P.P., Assam. 4. Referring to the confessional statement (Ext.-2), as well as the statement of the accused recorded under Section 313 Cr.P.C., apart from the evidence of the accused (DW-1), it has been submitted by Mr. Mahanta, learned amicus curiae, that since the confession has been retracted by the accused appellant during the examination under Section 313 Cr.P.C. as well as in his evidence while examining himself as DW-1, such retracted confession cannot be the basis for conviction unless of course the same is corroborated by other reliable and trustworthy evidence. According to Mr. Mahanta, there is no corroboration of the retracted confession and hence the learned Sessions Judge ought not to have convicted the accused appellant under Section 302 IPC and accordingly sentenced him to suffer rigorous imprisonment. According to Mr. Mahanta, there is no corroboration of the retracted confession and hence the learned Sessions Judge ought not to have convicted the accused appellant under Section 302 IPC and accordingly sentenced him to suffer rigorous imprisonment. Referring to the deposition of PW-6, the learned amicus curiae, has further submitted that his deposition relating to making of dying declaration also cannot be believed and treated as corroborating the retracted confession, since no other witness has deposed relating to making any dying declaration. It has also been submitted that going by the nature of injuries found on the person of the deceased, it is not possible to make a dying declaration as stated by the PW-6 in his evidence and hence the judgment of conviction recorded by the learned Sessions Judge needs to be set aside and the accused appellant is to be set at liberty. The learned amicus curiae further submits that, in any case, the appellant ought not to have been convicted under Section 302 IPC, in view of the statement of the accused about the loss of power of self-control because of grave and sudden provocation by the deceased by assaulting the appellant's parents. 5. Mr. Dutta, learned Addl. Public Prosecutor, on the other hand, supporting the judgment of conviction recorded by the learned Sessions Judge, has submitted that it is evident from the deposition of PW-6 that the deceased has made a dying declaration that a dao blow on his head was inflicted by the appellant and hence the retracted confession has been corroborated by the PW-6. It has also been submitted that it is not correct to say that the retracted confession cannot be the basis for recording conviction, which no doubt can be the basis if there is other corroborative evidence on record. Mr. Dutta submits that since the confessional statement made by the accused appellant has been corroborated by the PW-6, the learned Sessions Judge has rightly convicted the appellant under Section 302 IPC. The learned counsel further submits that no case is made out to alter the conviction from under Section 302 IPC to under Section 304 IPC. 6. We have considered the submissions advanced by the learned counsel for the parties and also perused the records including the evidence adduced. 7. The learned counsel further submits that no case is made out to alter the conviction from under Section 302 IPC to under Section 304 IPC. 6. We have considered the submissions advanced by the learned counsel for the parties and also perused the records including the evidence adduced. 7. PW-1 the doctor, who conducted the autopsy, in his evidence, based on the post mortem report (Ext.-1), has stated that the following injuries were found on the person of the deceased: (i) One incised wound of size 24 cm x 2 cm x cervical vertebral depth was present transversely over the nape. Separation of muscles and vessels noticed. (ii) One incised wound of size 18 cm x 1 cm x bone depth was present over the occipital region of head. On dissection, cut fracture of the occipital bone was found. (iii) One incised wound of size 20 cm x 1 cm x brain depth was present on right parietal region of the scalp. (iv) One incised wound of size 18 cm x 1 cm x bone depth was present over the nose obliquely. (v) One incised wound of size 18 cm x 1 cm x muscle depth was present left laterally to neck causes separation of vessels and muscles. (vi) One incised wound of size 7 cm x 1 cm x bone depth was present over extensor surface of right forearm, causes cut injury of muscles and fracture of bone sides of ulna bone. The doctor has opined that the death was caused due to the shock and hemorrhage as a result of the injuries sustained and all the injuries are ante mortem and homicidal in nature and caused by sharp edged object. This witness has not been cross-examined at all by the defence. The defence, therefore, has accepted the injuries found on the person of the deceased as well as the cause of death. 8. The prosecution in order to bring home the charge has also proved the confessional statement made by the accused appellant, which has been marked as Ext.-2. The learned Magistrate, who recorded the confessional statement, namely, Miss Tasfia Hussain (PW-3), has deposed about due recording of the confessional statement after giving necessary warning and time for retraction and ensuring that the appellant was not under the influence of any police or any other agency or was not compelled to make any confessional statement. The learned Magistrate, who recorded the confessional statement, namely, Miss Tasfia Hussain (PW-3), has deposed about due recording of the confessional statement after giving necessary warning and time for retraction and ensuring that the appellant was not under the influence of any police or any other agency or was not compelled to make any confessional statement. During cross-examination no contradiction could be brought out by the defence. It also appears from the Ext.-2 confessional statement, which, however, was retracted by the accused appellant during the examination under Section 313 Cr.P.C. and also while recording his evidence as DW-1, that such confession was true and voluntary. 9. PW-6, the father of the deceased in his evidence has stated that on the day of occurrence his son along with his friend Kushol had gone to the house of the brother of accused Joka Karmakar and after about 5 minutes his son came back with a cut injury on his head and made a declaration that the accused Joka has inflicted the said cut injury on his head. This witness further stated that by that time the accused persons accompanied by Bhutang and Thungru, being armed with dao, came to his house and when attempted to assault him, he fled away and took the shelter in the house of Sabina Karketa (PW-5). This witness has also deposed that for the whole night she stayed in the house of Sabina and their house was put on fire by the accused persons. This witness though was cross-examined by the accused, no question, not to speak of even a suggestion was put to this witness on the dying declaration made by the deceased. PW-5 Sabina Karketa has corroborated the version of PW-6 by saying that on the night of occurrence Kanak Koya (PW-6) came to her house and informed her that the accused person has assaulted Dipak Koya (deceased). 10. It is a settled position of law that the conviction can be based even on retracted confession, provided same is corroborated by the testimony of other witnesses examined, which does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated. It would be sufficient if the general trend of the confession is substantiated by some evidence, which would tally what is contained in the confession (Subramania Goundan Vs. It would be sufficient if the general trend of the confession is substantiated by some evidence, which would tally what is contained in the confession (Subramania Goundan Vs. State of Madras - (1958) SCR 428). In the case in hand, as discussed above, the confessional statement, which has subsequently been retracted by the accused appellant, has been broadly corroborated by the PW-6 and hence such retracted confession can be the basis for conviction. 11. The next question which arises for consideration, having regard to the confessional statement made, is whether the accused is to be convicted under Section 302 or 304 IPC. Section 300 defines murder as the act by which the death is caused is done with the intention of causing death or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if the person committing the act knows that it is so eminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commit such act without any excuse for incurring the risk of causing death or such bodily injury, except in cases mentioned in Exceptions-1 to 5. If such an act comes within any of the exceptions, then it amounts to culpable homicide not amounting to murder and the punishment has to be under Section 304 either Part-I or Part-II. The first exception to Section 300 IPC provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. 12. In the case in hand, it appears from the confessional statement made by the accused that on the night of occurrence at about 9 P.M. he came out of his house with a dao after hearing commotion outside and saw his parents being assaulted by the accused and one Kukhol having dao and hoe in their hands. 12. In the case in hand, it appears from the confessional statement made by the accused that on the night of occurrence at about 9 P.M. he came out of his house with a dao after hearing commotion outside and saw his parents being assaulted by the accused and one Kukhol having dao and hoe in their hands. He has further stated that he then gave Dipak Koya (deceased) a dao blow on his head and thereafter chased him. It, therefore, appears from the said statement that the accused has lost the power of self-control because of grave and sudden provocation due to the action on the part of the deceased and another in assaulting the parents, resulting in giving the dao blow. The case, therefore, comes within the 1st exception to Section 300 and hence the accused appellant is to be convicted under Section 304 Part-I IPC, as the said act by which the death is caused is done with the intention of causing death. The conviction of the accused appellant, therefore, is altered from Section 302 IPC to Section 304 Part-I IPC. 13. Having regard to the facts and circumstances, the accused appellant is sentenced to undergo rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for a further period of 6(six) months. The fine, if realized, shall be paid to the deceased family. 14. The appeal is accordingly partly allowed. The judgment of conviction and sentence as recorded stands modified. Before parting, we place on record our appreciation to the service rendered by Mr. T.J. Mahanta, learned amicus curiae, who shall be entitled to the professional fee of Rs. 5,000/-, payable by the Govt. of Assam. Appeal Partly Allowed