1. This appeal is directed against the Judgment dated 19.07.2011 passed by the learned Addl. Sessions Judge (FTC), Sivasagar in Sessions Case No.215 (S-C) 2010 convicting the accused /appellant, namely, Raghu Nath Routia (hereinafter referred to as the 'accused person) of offence U/s. 302 of IPC and sentencing him to undergo imprisonment for life and also to pay a fine of Rs. 1,000/-, in default S.I. for 1(one) month for the aforesaid offence. 2. Heard Ms. M.Buzarbaruah, learned Amicus Curiae appearing for the accused/appellant. Also heard Mr. D.Das, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 3. The projected case of the prosecution, in short, is that on 26.09.2010 at about 7 P.M. the accused person allegedly caused the death of his wife Dipa Rautia by strangulating her. In that connection, an FIR was lodged with the Office-in-Charge, Sapekhati Police Station (in short, O/C, Sapekhati P.S) on 27.09.2010. On receipt the FIR, O/C, Sapekhati P.S registered a case vide Sapekhati P.S Case No.70/2010 and ordered one Sri Nabin Ch.Gogoi, S.I. of Police to investigate the case. 4. Being so entrusted with the investigation of the case, the I.O. visited the place of occurrence, held inquest on the dead body and sent the same to the hospital for post mortem examination, examined the witnesses and did other needful and on conclusion of investigation, the police officer, who was entrusted with the investigation, submitted charge sheet U/s. 302 IPC against the accused person and forwarded him to the court to stand his trial there for the offence aforesaid. 5. The learned Magistrate, before whom charge sheet was so laid, committed the case to the Court of Sessions since the offence U/s. 302 IPC is exclusively triable by a Court of Sessions. On commitment of the case, the learned Sessions Judge , Sivasagar transferred the same to the file of the learned Addl. Sessions Judge (FTC), Sivasagar for disposal in accordance with law. 6. The learned Addl Sessions Judge( FTC), Sivasagar on receipt of the case on transfer and on hearing the learned counsel for the parties, framed charge U/s 302 IPC against the accused person and the charge, so framed, on being read and explained to the accused person, he pleaded not guilty and claimed to be tried. 6. The learned Addl Sessions Judge( FTC), Sivasagar on receipt of the case on transfer and on hearing the learned counsel for the parties, framed charge U/s 302 IPC against the accused person and the charge, so framed, on being read and explained to the accused person, he pleaded not guilty and claimed to be tried. During trial, the prosecution had examined as many as 10 (ten) witnesses including the informant, Medical Officer (M.O.) and the Investigating Officer (I.O.). 7. The statement of the accused person was also recorded U/s. 313 CrPC. The accused person took the stand that on the fateful night, his wife Dipa Rautia drunk heavily for which got intoxicated and then quarreled with him for which he got angry and assaulted her and subjected her to several kicks and blows for she sustained injuries and got killed. He, however, had no intention to kill his wife. But he did not adduce any evidence in support of such claim. 8. On conclusion of the trial and on hearing the arguments, advanced by the learned counsel for the parties, the learned court below was pleased to convict the accused person of offence U/s. 302 IPC and sentenced him punishment as aforesaid. It is that judgment which has been assailed in the present appeal citing several infirmities in the judgment under challenge. 9. The learned Amicus Curiae appearing on behalf of the accused person strenuously submits that the prosecution case is based on circumstantial evidence as well as dying declaration reportedly made by the accused person before PW 1, Delip Majhi, PW 2, Birsing Rautia and PW 3, Niveswar Chetia . According to the learned Amicus Curiae, the dying declaration aforesaid are not uniform in contents and stuffs. 10. In that connection, it may be stated that though PW 2 states that the accused person admitted to have killed his wife by slapping her on the night in question, yet, PW 3 deposes that the accused admitted to have killed his wife subjecting her to various of kicks. On the other hand, though PW 1 deposes that the accused person admitted to have killed his wife, yet, he did not utter before him as to how he killed his wife. 11. On the other hand, though PW 1 deposes that the accused person admitted to have killed his wife, yet, he did not utter before him as to how he killed his wife. 11. According to learned Amicus Curiae, inconsistencies in the dying declarations are quite apparent and such inconsistencies require this court not to place any reliance on those dying declarations, more so, when the story projected by the informant (PW 1) in his FIR is fundamentally different from the stories , told and retold by the witnesses during trial since in his FIR the informant (PW 1) states that on the night of 26.09.2010, the accused person killed his wife by strangulating her under the influence of liquor. 12. Though the prosecution tries to founded its case on a series of circumstantial evidence, yet, the circumstances, relied on do not make a chain of events complete in all respect leading to sole and lone conclusion that the accused , and none else, had committed the crime in question. Situation being such, circumstantial evidence too cannot be said to have, made out the allegation against the accused person. 13. The further case of the learned Amicus Curiae was that the evidence of prime prosecution witnesses ,namely, PW 1, PW 2, PW 3 are inconsistent, contradictory and defective on material points and therefore, no reliance can be placed on their evidence. On all those counts, the learned Amicus Curiae submit this court to acquit the accused person of offence U/s 302 IPC on setting aside the judgment under challenge. 14. Mr. D.Das, learned Addl. P.P. Assam, however, submits that the argument, advanced from the side of the learned Amicus Curiae, is based not on facts but to a great extent on fiction and conjecture. According to him, though there were some inconsistencies in the evidence of PWs over the extra judicial confession made by the accused person before the PW 1 PW 2 and PW 3, yet, such inconsistencies and contradictions are too minor to discard the extra judicial confession reportedly made by the accused person. 15. That apart, on the fateful night the victim was killed in her own house. There is also evidence on record that the deceased and the accused were involved in a quarrel. 15. That apart, on the fateful night the victim was killed in her own house. There is also evidence on record that the deceased and the accused were involved in a quarrel. This coupled with the fact that there is absolutely nothing on record to show the involvement of third person in killing the wife of the accused person only serve to show that the killer of the wife of the accused is none other than accused/appellant and as such, it needs to be held that circumstances proved by the prosecution form a chain of circumstances which lead to irresistible conclusion that the accused, and none else, had caused the death of the deceased. 16. The statement of the accused person was recorded U/s 313 CrPC. The accused person had admitted to have killed the deceased. However, he claims to have killed his wife in a sudden quarrel in a hit of moment without any intention of killing her. Such admissions together with extra judicial confession of the accused person and other circumstances aforementioned, narrated above, proved beyond all reasonable doubt that the accused was the person who had killed his wife on the night in question. 17. The materials on record further shows that he killed his wife with the intention of killing his wife and as such, the learned court below committed no wrong whatsoever in convicting the accused person U.s 302 IPC and sentencing him to punishment aforesaid. The learned amicus Curiae, therefore, urges this court to dismiss the appeal on affirming the judgment under challenge. 18. Before we proceed further, let us have a look at the evidence of Dr. Saukat Husain (PW 9) who conducted the autopsy on the dead body of the deceased on 28.09.2010 at Civil Hospital, Sivasagar and the result of his examination is as follows:- External appearance: Rhigor mortis present. Body swelling with sking peeling off. Face protruded. Foecal matter around arms. No external injury. Cranium and Spinal Canal All organs are healthy. Thorax : Walls, skin from chest wall peeling off. Other organs are healthy. Abdomen : Walls, skin pinning of wall peeling off. Peritoneum: Peritonial cavity filled blood stain fuilds more than 1.5 metres. Spleen: Lacerated 3” wound over superior surface of spleen. Other absominal organs are found healthy. Injuries were antemortem in nature”. 19. Thorax : Walls, skin from chest wall peeling off. Other organs are healthy. Abdomen : Walls, skin pinning of wall peeling off. Peritoneum: Peritonial cavity filled blood stain fuilds more than 1.5 metres. Spleen: Lacerated 3” wound over superior surface of spleen. Other absominal organs are found healthy. Injuries were antemortem in nature”. 19. According to doctor, the aforesaid person died of shock and haemorrhage due to injury to the spleen. According to him, spleen may get ruptured for application of force on it by any blunt weapon and such rupture of spleen is sufficient to cause death. 20. So situated, let us consider the evidence of PW 1, PW 2 and PW 3. Sri Dilip Majhi, PW 1, deposes that the accused is his brother-in-law and the deceased was his elder sister. On the fateful night, the accused killed his wife. On getting such information, he came to the house of the deceased next day in the morning, met the accused person and inquired him as to how his wife met her death whereupon the accused admitted to have killed his wife. He, thereafter, submitted an FIR with the O/c. Sapekhati P.S. 21. P.W.2, Sri Birsing Rautia, deposes that the accused person is his son and the deceased is his daughter-in-law. According to him, on the fateful night, he found the dead body of his daughter-in-law inside the house of the accused person. When he enquired as to how his daughter-in-law met her death, the accused admitted to have killed his wife by slapping again and again. His son also told the PW 2 that he assaulted his wife since his wife quarrelled with him on that night after consuming huge amount of liquor. 22. PW 3, Sri Nireswar Chutia is a Govt. Gaonburah, who deposes that on the fateful night, he got the information that the deceased was killed by her husband. Accordingly, he came to the place of occurrence and met the accused, who told him that he killed his wife by trampling her. In that connection, he wrote an FIR on the dictation of PW 1. His signature on the FIR was proved as Ext.1 (1). 23. PW 4, Sri Sambaru Rautia deposes that the accused is his cousin. In his cross examination, he stated that he was not in his house when the incident took place. In that connection, he wrote an FIR on the dictation of PW 1. His signature on the FIR was proved as Ext.1 (1). 23. PW 4, Sri Sambaru Rautia deposes that the accused is his cousin. In his cross examination, he stated that he was not in his house when the incident took place. He was in place of work and as such, he knows nothing about the incident in question. He was declared hostile since he did not support the prosecution case in the way expected of him. 24. PW 5, Prahlad Chetri states that one day after returning from his duty, he saw some police personnel in the house of the accused person. Police obtained his signature in some papers but he did not know why his signature was so obtained by police. He was also declared hostile to the prosecution. 25. PW 6 is Sri Mahesh Gowala. It is in his evidence that one day he came to the house of accused person and found his wife lying dead inside his house. When he was asked as to how his wife met her death, the accused told him that she died of disease. He was also declared hostile. 26. PW 7, Shri Brajen Rautia deposes that the incident in question occurred during Durga puja , 2010. On coming to know about the death of the wife of the deceased, he went to such place and found body of deceased lying on the verandah of the house of the accused person. On being enquired about the cause of death of his wife, the accused told him that he did not know how his wife met her death. He was also declared hostile. 27. PW 8, Sri Puja Rautia is a tea garden worker and the son of the deceased. According to him, on the fateful night, his mother died but he did not know how his mother met her death. He was also declared hostile. 28. PW 10, Sri Nabin Ch.Gogoi is the I.O. of the case. He deposes that having registered the case on the basis of FIR lodged by PW 1, the then O/C Sapekhati Police Station asked him to investigate the case which was registered as Sapekhati Police Station No.70/10 U/s 302 of IPC. He was also declared hostile. 28. PW 10, Sri Nabin Ch.Gogoi is the I.O. of the case. He deposes that having registered the case on the basis of FIR lodged by PW 1, the then O/C Sapekhati Police Station asked him to investigate the case which was registered as Sapekhati Police Station No.70/10 U/s 302 of IPC. Being so entrusted with the investigation, he visited the place of occurrence, held inquest on the dead body and sent the same to hospital for post mortem examination and on conclusion of the investigation, he submitted charge sheet against the accused person. 29. Now, let us see how far the evidence on record makes out allegation against the accused person. A bare perusal of evidence of PW 1, PW 2 and PW 3 reveals that the accused confessed to have killed his wife and such confession was made before PW 1, PW 2 and PW 3. Though these three PWs were subjected to cross examination nothing did emerge there-from to show that the evidence of these PWs regarding accused persons making confession is not truthful. 30. On our further perusal of the evidence of PWs aforesaid, it is also found that the confession so made by the accused person before the PW1, PW 2 and PW 3 are voluntarily since there is nothing on record to show that such confession was extracted from accused person putting him to any kind of torture, coercion, threat or inducement. 31. The Doctor in his evidence opined that deceased died due to rupture of spleen. The extra judicial confession reveals that the accused subjected the deceased to barrage of assault by kicks and blows. It clearly shows that the extra judicial confession is truthful as well. 32. It is a settled law that extra judicial confession may be relied in convicting accused persons on although Indian Courts seek corroboration to such confession on material points from independent quarter. In that connection, we may rely on the decision of Hon'ble Apex Court in the caes of Pancho Vs. State of Haryana. The relevant part is reproduced below:- “16. The extra-judicial confession made by A-1, Pratham is the main plank of the prosecution case. It is true that an extra-judicial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other evidence on record. State of Haryana. The relevant part is reproduced below:- “16. The extra-judicial confession made by A-1, Pratham is the main plank of the prosecution case. It is true that an extra-judicial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other evidence on record. In Gopal Sah v. State of Bihar1 this Court while dealing with an extra-judicial confession held that an extra-judicial confession is on the face of it, a weak evidence and the courts are reluctant, in the absence of a chain of cogent circumstances, to rely on it for the purpose of recording a conviction. We must, therefore, first ascertain whether the extra-judicial confession of A-1, Pratham inspires confidence and then find out whether there are cogent circumstances on record to support it.” 33. We have already found that the extra judicial confessions, under consideration, are voluntary and truthful. In that connection, one needs to keep in mind that PW 2 before whom the accused confessed to have killed his wife is the father of the accused person. There is nothing on the record to show that the father of the accused had falsely implicated him with the case in question. More important, such confession also draws supports from medical evidence too as far as type, nature and site of wounds on the body of the victim. 34. Situation being such, in our considered opinion, the extra judicial confession which is already found to be voluntary and truthful has again received support on material points from the independent source as well. Being so, in our opinion, the extra judicial confession which the accused had made to the PW 1, PW 2 and PW 3 can very well be relied on. 35. We have already found that in his statement, recorded U/s 313 CrPC, the accused person admitted to have killed his wife on that night in question since the deceased quarrelled with him after being drunk. Such admission again goes a long way in establishing the charge that on the night of 26.9.2010, the accused person had killed his wife. 36. We have found that on the fateful night, there was none in the house of the accused person except the deceased and the accused person. Such admission again goes a long way in establishing the charge that on the night of 26.9.2010, the accused person had killed his wife. 36. We have found that on the fateful night, there was none in the house of the accused person except the deceased and the accused person. We have also found that there was a quarrel between the deceased and her husband over some domestic matter on the night in question. We have also found that the deceased met a homicidal death on or about 26.9.2010. All these revelations serve to show that the circumstances which prosecution has established form a chain of circumstances complete in all respect and it only shows that the accused, and none else, was the author of crime in question. 37. We have considered the infirmities in the prosecution case and found that the alleged infirmities are either non-existent or they are so feeble that under no circumstances, they can overthrow the prosecution case. Being so, in our considered opinion, it needs to hold that the accused and none else had killed his wife on the night of 26.9.2010. No other conclusion would be compatible with the evidence on record. 38. Now the only question left to be answered is whether on the materials on record accused can be held guilty u/s 302 IPC. It is found that the deceased was a habitual drunker. There is also evidence on record to show that on the fateful night the deceased had quarrelled with the accused person after taking a good quantity of liquor. The materials on record further show that the accused got annoyed so much so that he started beating his wife with kicks and blows. 39. It is well apparent from the record that the general health of the deceased was far from satisfactory, may be for her habit of regular drinking which means that she must be suffering from some other alcohol related ailments. When all these things are considered together, one would find that the accused had killed his wife on the night of 26.9.2010 in a sudden fight in a heat of passion upon a sudden quarrel. 40. So situated, in our considered opinion, the accused person cannot be said to have committed offence U/s. 302 IPC. When all these things are considered together, one would find that the accused had killed his wife on the night of 26.9.2010 in a sudden fight in a heat of passion upon a sudden quarrel. 40. So situated, in our considered opinion, the accused person cannot be said to have committed offence U/s. 302 IPC. Rather, he needs to be held guilty of offence U/s 304 Part-II IPC since all materials on record show that he caused the death of his wife with the knowledge that his act of assault is likely to cause her death but without any intention to cause death or with intention of causing such bodily harm as is likely to cause her death. 41. In view of the above, the conviction U/s. 302 IPC is quashed and set aside. 42. Accused /appellant stands convicted of offence U/s 304 Part-II IPC and is sentenced to suffer R.I. for 5 years and to pay a fine of 1000/- in default S.I. for 3 months for the offence aforesaid. 43. In the result, the appeal is partly allowed. 44. Needles to say that the period which the accused / appellant has already undergone is to be set off against the period of sentence. 45. Return the LCR forthwith. 46. We deeply appreciate the assistance rendered by Ms. M.Buzarbaruah, learned Amicus Curiae in disposing present appeal. He is, therefore, directed to pay Rs. 7,000/- as being his professional fee.