JUDGMENT : D. Dash, J. - The judgment of conviction and sentence passed by the learned Additional Sessions Judge (FTC), Padmapur in S.T case No. 231/31/8 of 2004 convicting the appellant for offence u/s 304(1), IPC, and sentencing him to undergo rigorous imprisonment for 10 years with payment of fine of Rs. 1,000/- (one thousand ) in default to undergo rigorous imprisonment for a period of 6 ( six ) months has been called in question by presenting the appeal from in side the jail. The prosecution case in short is that the appellant had married deceased Kumari as per Hindu rites as well as caste, custom of the parties in the year, 1985. It is stated that on 15.04.2001 during morning hour around 9.00 A.M. the appellant mercilessly assaulted his wife and left her at village-Gidemal near a road under a banyan tree and fled away from the place. It is the further case of the prosecution is that one Mohan Bag and Nepali Sahu having seen the appellant taking his wife and leaving there, when asked him about the same, the appellant maintained silence. So they informed the brother in law of the appellant regarding the serious condition of his sister and the fact about her being left there by the appellant, also about blood oozing out of her face and that she was lying unconscious. Balagopal the brother in law of the appellant arrived and they shifted his sister Kumari to Telpali Hospital in a bullock cart. The matter was then informed to the police and a case was registered against the appellant for commission of offence u/s 307, IPC which led to the commencement of investigation. Kumari for better treatment was shifted to Padmapur, Sub-Divisional Hospital where she died. Inquest was held over the dead body and on police requisition post mortem was conducted. Finally on completion of investigation charge sheet having been submitted and the case having been committed to the court of Sessions the appellant faced the trial for offence under Sections 302/498A, IPC. 2. During trial, prosecution in order to bring home the charges against the appellant examined in total 14 witnesses. P.W.1 is the informant and brother of the deceased, i.e. the brother in law of the appellant. P.W.2 is the witness who claims to have seen the appellant while he was carrying his wife and then to have left the place. 2. During trial, prosecution in order to bring home the charges against the appellant examined in total 14 witnesses. P.W.1 is the informant and brother of the deceased, i.e. the brother in law of the appellant. P.W.2 is the witness who claims to have seen the appellant while he was carrying his wife and then to have left the place. P.W. 3 is a witness who has stated about strained relationship between the deceased and the appellant, whereas P.W.4 is the mother of the deceased who has also been examined for the said reason. P.W.5, P.W. 6, P.W.7, P.W.8 and P.W. 9 have also been examined as witnesses in that regard. P.W.10 is the doctor, who had conducted the post mortem examination and P.W.11 is the witness to seizure of wearing apparels of the deceased. P.W.12 and 13 are the doctors who had first examined the deceased and who had given opinion on certain query being made by the investigating officer respectively. P.W. 14 is the investigating officer of this case. Besides the above, prosecution has proved documents such as F.I.R Ext.1, inquest report Ext.2, Post mortem report Ext.3, medical examination report Ext.15 etc. The defence has examined two doctors, one who had admitted the deceased in Sub-Divisional Hospital, Padmapur and other one who had attended the deceased in the hospital and through them the bed head tickets have been proved and marked as Ext. B with a report on query as regards probable cause of death marked as Ext. A. 3. The plea of the defence is that of denial with a specific case that death was due to fever from which the deceased was suffering. The defence has examined two doctors of S.D. Hospital who had admitted the deceased and treated her. 4. The trial court in view of charges formulated two points for decision i.e. as regards treating the deceased with cruelty with a view to coerce the deceased to meet unlawful demand and the next one with regard to incident of merciless assault by the appellant finally leading to death of Kumari, the wife of the appellant. 5. 4. The trial court in view of charges formulated two points for decision i.e. as regards treating the deceased with cruelty with a view to coerce the deceased to meet unlawful demand and the next one with regard to incident of merciless assault by the appellant finally leading to death of Kumari, the wife of the appellant. 5. Learned counsel for the appellant submits that the appreciation of the evidence as done by the court below is highly improper and on proper appreciation of evidence let in by the prosecution as well as the defence, the finding of guilt rendered by the trial court for the offence under Sections 498A/304-II, IPC can not sustain in the eye of law. Learned Additional Government Advocate submits that the overwhelming evidence on record remains in favour of a finding of guilt and the court below taking the facts and circumstances into consideration has rightly convicted the appellant for offence U/s. 304-II, IPC. 6. With the above rival submission in mind, it first stands for decision as to whether the death in present case is homicidal or not. Besides the oral evidence of the witnesses, it is the evidence of P.W. 10 the doctor, who conducted post mortem examination over the dead body of Kumari that she had noticed a number of external injuries on the dead body and those are on the both limbs, right cheek below right palpibral conjunctiva, left parietal region of the scalp etc. She has also stated the injuries to have been possible by hard and blunt weapon and to be ante mortem in nature although are not sufficient to cause of death in ordinary course of nature. P.W.12 is the doctor of Telapali Hospital, has also stated that while giving treatment to Kumari at the first instance, he had noticed external injuries on her person and at that time as her condition was serious, he referred to S.D. Hospital for better treatment. P.W. 13 is the Assistant Professor, who was asked to give his opinion as regards the death after going through the post mortem report prepared by P.W.10, has stated that the external injuries on the head are sufficient to produce concussion to the brain and that leads to unconsciousness and circulatory failure inviting death. It is also his evidence that such concussion in the present case might have been the cause of death. It is also his evidence that such concussion in the present case might have been the cause of death. Report has been proved as Ext.8. The witness has been put to serious cross-examination. This expert has stated that in some cases of concoction death is the result and in some cases the patient recovers fully and also in some cases recovery is with residual paralysis. With this medical evidence, now the oral evidence of P.W.1 is required to be glanced. It becomes clear that when he went being informed by P.W.2 to that place where his sister was lying being left by the appellant, he found her sister with bleeding injury on face and she was then lying in an unconscious state. Next he states to have taken to Telapali Hospital, then to Padmapuru Sub-Divisional Hospital where the death took place. P.W. 2 has also stated to have seen Kumari at the spot. 7. The defence case is that the death is due to suffering of the deceased from fever. So now let us turn to the evidence of D.W.1. It has simply been stated by this doctor that the bed head ticket revealed that the deceased was suffering from fever for three days but he has clearly stated that the patient was declared dead due to peripheral circularly failure and during treatment, she died. Such noting in bed head ticket is of little significance when it is not shown that it was so recorded as per version of Kumari or any person upon hearing from Kumari D.W. 2 has stated that the patient was under coma. The evidence of Assistant Professor P.W.13 taken together with the existence of external injuries and other evidence as discussed above, that the appellant left the deceased in an unconscious state are also quite enough to hold in favour of homicidal death. Thus I am led to conclude that the death was homicidal in nature. 8. With the above, let me now examine the evidence with regard to the complicity of the appellant. P.W. 1 the brother of the deceased, who is the informant of this case has deposed about the factum of assault by the appellant upon the deceased in past. It is also his evidence that the appellant was not doing any work, his sister was objecting and that was the reason for frequent quarrel between them. P.W. 1 the brother of the deceased, who is the informant of this case has deposed about the factum of assault by the appellant upon the deceased in past. It is also his evidence that the appellant was not doing any work, his sister was objecting and that was the reason for frequent quarrel between them. All these have been brought out from the lips of this witness during cross-examination. P.W. 4 the mother of deceased has also stated so that there was frequent quarrel in the house. P.W. 5 has also supported said version. About quarrel evidence of P. W. 8 is also very clear. All of them have also described the instances. So, I do not find any improper appreciation of the evidence on behalf of the trial court in holding that deceased was tortured and cruelty was being meted out at her for quite some time till she was left at the place after being assaulted as has been stated by P.W.2. The evidence of above witnesses are found to be having the ring of truth and there appears absolutely no justification on their part to falsely implicate the appellant. 9. With regard to the incident P.W.1, the brother of the informant has stated to have received the information from P.W.2 about her sister being left near the banyan tree at one end of village and he has further deposed to have immediately rushed down to the place and to have been seen his sister Kumari lying with injury on her face and blood oozing out of her nose, when her state was unconscious. P.W. 2 has deposed that it is the appellant who left the deceased in that condition under that banyan tree at one end of their village. The plea of the defence at this stage is found to be wholly unacceptable for the simple reason that if the deceased was suffering from fever, there was no reason further to be left by appellant at one end of the village under a banyan tree that too in an unconscious state which fact is not in dispute. The plea of the defence at this stage is found to be wholly unacceptable for the simple reason that if the deceased was suffering from fever, there was no reason further to be left by appellant at one end of the village under a banyan tree that too in an unconscious state which fact is not in dispute. It is also not there in the evidence that the appellant had ever gone to the hospital to see his wife at any point of time prior to her death and rather it stands that the accused was last seen by P.W.2 while leaving deceased and thereafter his whereabouts were not known. It has also been deposed by P.W.1 regarding longstanding bitterness prevailing in the matrimonial home. The F.I.R lodged in the case Ext.1 corroborates the version of P.W.1 as regards existence of injury on the person of the deceased which he had seen, immediately on his arrival. P.W.7 has further deposed that the deceased was taken by the appellant on a cycle and left under that banyan tree and P.W. 8 is the witness who is a neighbour of the appellant had seen the appellant mercilessly assaulting the deceased after the quarrel regarding giving of paddy, rice and money which was alleged to have been taken by the brother in law of the appellant. He has also stated that the appellant had given the threat to kill his wife as she was begetting no children. This witness is really an important witness about authorship of injuries upon Kumari that being asked as to where appellant was taking Kumari, the appellant replied that she was suffering from fever and for that she was being taken to the parent's house. This witness is seen to have responded in a very natural manner in telling the appellant that after assaulting her for the entire night how she was being taken to the parents house to be left there. The witness further stated that it was an act of pretension on the part of the appellant that deceased was suffering from fever for which she was being taken to the house of her parents. The witness further stated that it was an act of pretension on the part of the appellant that deceased was suffering from fever for which she was being taken to the house of her parents. When the evidence of P.W. 8 is taken into consideration along with the medical evidence, in the absence of any material to suggest otherwise, the role of the appellant stands proved that after having mercilessly assaulted his wife she was taken and left under the banyan tree where after his wife Kumari died in course of treatment in the hospital. The version of the defence is found to have not been proved by preponderance of the probabilities. Considering the nature of injuries and other attending circumstances that the assault is in course of sudden quarrel for petty matters the injuries as noticed and their seats, the conviction recorded for offence U/s. 304-II, IPC can not be found fault with as those clearly suggest that the act done is not with the intention of causing death or with the intention to cause such bodily injury as is likely to cause death though it can be said that such bodily injuries were caused with the knowledge that the same is likely to cause death. Lastly stands for consideration, the submission of learned defence counsel that it is a fit case for reduction of the period of substantive sentence as ordered for the said offence u/s 304-II, IPC which the learned Standing Counsel resists. Considering the facts and circumstances of the case and cumulatively viewing all other relevant factors that the appellant hails from a rural back ground and was some how earning his livelihood and also to have been remaining issue-less even for quite a long time after his marriage with a depression, the period of rigorous imprisonment awarded for commission of offence u/s 304-II, IPC as 10 (ten) years in my considered view needs reduction. In view of aforesaid, the appellant is hereby sentenced to under go rigorous imprisonment for a period of 7 years for the offence u/s 304-II, IPC in stead of rigorous imprisonment for 10 years followed by a fine of Rs. 1,000/- (one thousand) in default to undergo rigorous imprisonment for a period of 2 (two) months. Final Result : Partly Allowed