JUDGMENT : P.K. Saikia, J. This appeal is directed against the judgment and order dated 17.08.2011, passed by the learned Sessions Judge, Sivasagar, in Sessions Case No. 141(S-S)/2004 convicting the appellant, namely, Sri Cheniram Chutia of offence u/s 302 IPC and sentencing to him to imprisonment for life with a fine of Rs. 5,000/- i.d., R.I. for another 6 months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the appellant Sri Cheniram Chutia (herein after referred to as the accused person) has preferred this appeal citing several infirmities in the judgment under challenge. 3. We have heard Mr. S.M. Sarma, learned counsel for the appellant and also heard Ms. S. Jahan, learned Addl. PP, Assam. 4. The brief facts, necessary for disposal of the present appeal are that on 17.04.2002 at about 7 pm, while one Makhan Neog @ Mridul Neog (herein after referred to as the victim) was returning home and reached frontage of the house of the accused person, the accused person attacked him with a dao inflicting injuries on his person which caused his instantaneous death. 5. Having killed the victim, the accused surrendered before the police at Sivasagar Police Station same day at about 8.50 pm, with the weapon, reportedly used in committing the crime in question and in that connection, a G.D. entry was made. Next day one Sri Pradip Neog lodged a formal FIR with the O/C, Amguri P.S. On receipt of the same, O/C. Amguri PS registered a case vide Amguri PS Case No. 27/2002 and ordered investigation. 6. The police officer who was entrusted to investigate the case, visited the PO during the course of investigation, conducted inquest on the dead body, sent the same to hospital for post mortem examination, examined the witnesses, arrested the accused person and did other things needful and on conclusion of investigation, he submitted charge sheet u/s 302 IPC against the accused person and forwarded him to the Magistrate to stand his trail. 7. The Magistrate before whom charge sheet was so laid, committed the case to the court of Session since the offence u/s 302 IPC is exclusively triable by the court of Session. 7. The Magistrate before whom charge sheet was so laid, committed the case to the court of Session since the offence u/s 302 IPC is exclusively triable by the court of Session. On commitment of the case and on hearing the learned counsel for the parties, learned Sessions Judge was pleased to frame charge u/s 302 IPC and charge so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 8. During trial, prosecution has examined as many as 20 witnesses including the informant, the MO and the IO of the case. Statement of the accused person u/s 313 CrPC was also recorded. He denied most of the allegations, leveled against him. However, on being required, he declined to adduce any evidence of his own. 9. On conclusion of trial and on hearing the learned counsel for the parties, learned Sessions Judge, Sivsagar was pleased to convict the accused u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal on grounds more than one. 10. Mr. Sarma, learned counsel for the appellant submits that the judgment under challenge is unsustainable in law since it was not rendered on the basis of legal evidence. In respect of such contention, it has been alleged that prosecution or for that matter learned trial court has placed heavy reliance on the alleged confession which the accused reportedly made before the Magistrate during trial quite oblivious to the fact that such confession is inadmissible in law. 11. In that connection, it has been contended that such a confession was recorded on oath which makes entire confession illegal and in spite of such a serious infirmity in the confession in question, rendering it totally inadmissible in law, learned trial court has chosen to place full reliance on such confession in coming to the conclusion that prosecution has proved the charge u/s 302 IPC against the accused person. 12. It has also been contended that there is no direct witness to the incident in question since all the witnesses on whom prosecution has placed enormous reliance, they being PW 5, Sri Ajit Duta, PW 6, Shri Putul Dutta, PW 9, Shri Chanaky Chatia @ Baruah, PW 13, Sri Debojit Chutia @ Deb and PW 15, Smti. 12. It has also been contended that there is no direct witness to the incident in question since all the witnesses on whom prosecution has placed enormous reliance, they being PW 5, Sri Ajit Duta, PW 6, Shri Putul Dutta, PW 9, Shri Chanaky Chatia @ Baruah, PW 13, Sri Debojit Chutia @ Deb and PW 15, Smti. Kon Bhonti Chutia, turned hostile to the prosecution leaving the prosecution case at lurch. When the star prosecution witnesses turned hostile, it was not safe for the Trial court to conclude that prosecution has proved the charge leveled against the accused person. 13. Even the other witnesses, namely, PW 1, Sri Pradip Neog, PW 2, Sri Prabin Bora, PW 3, Sri Arun Bordoloi, PW 4, Sri Lalit Dutta, PW 8, Sri Baba Bora, PW 10, Sri Tapan Dutta, PW 11, Sri Prabin Dutta, and PW 14, Sri Dilip Kr. Baruah, could not render any evidence of convincing nature to show that the accused attacked, injured and killed the victim on the evening in question. Being so, according to the learned counsel for the appellant, the judgment under challenge is required to be interfered with and the accused person needs to be acquitted of offence 302 IPC. 14. Alternatively, learned counsel for the appellant submits that if for one reason or other, this court comes to the conclusion that the accused was the person responsible for killing the victim, yet then, the accused person could not have been convicted U/s. 302 IPC. Rather, on the materials on record, he could have been convicted U/s. 304 Part II IPC since there is enormous evidence on record to show that the victim had profoundly provoked him to assault, injure and kill him on the evening aforesaid. He, therefore, urges this court to acquit the accused on setting aside the judgment under challenge. 15. On the other hand, Ms. S. Jahan, learned Addl. PP, submits that thought the confession in question become unsustainable in law for the infirmity aforementioned, yet, there are enough materials on record to show that it was the accused who attacked, injured and killed the victim at his own house on the night in question. In support of such contention, our attention has been drawn to the evidence of PW 6 who states, in no uncertain terms, that the accused had admitted to have killed the victim on the night aforementioned. 16. In support of such contention, our attention has been drawn to the evidence of PW 6 who states, in no uncertain terms, that the accused had admitted to have killed the victim on the night aforementioned. 16. That apart, if the evidence of witnesses is read together, one would find invariably that on the eventful night, the accused and the victim got involved in a quarrel at the house of former and in that quarrel, the accused attacked the victim with a dao inflicting his instantaneous death. Medical report completely supports such projections that had emerged through the evidence of other witnesses. 17. That apart, there is indisputable evidence on record to show that accused had surrendered before the police immediately after the alleged incident, and that too, taking the weapon of offence, same being the dao, in his hand. Such surrender is a firm testimony to the fact that on the fateful evening the accused, and none else, had killed the victim in his own house. She, therefore, urges this court to dismiss the present appeal on affirming the judgment under challenge. 18. We have considered the rival submissions having regard to the judgment under challenge and the evidence on record. Before proceeding further, we find it necessary to have a look at the evidence of Dr. Dilip Kr. Barua, who conducted autopsy on the dead body on 18.04.2002 and who was examined as PW 14 . According to him, on 18.04.2002, he was posted at Sivasagar Civil Hospital. On that day, he performed post mortem examination on the dead body of one Makhan Neog and found the following:- “External Appearance: Dead body of or adult man in fresh condition. Ghor mortis present. Body stained with clothed bloods. 1) Incised wound face over the nose extending transversely from right molar region to left molar region size- 3 x ½ x ½ 2) Incised wound on the right side of the neck transversely placed size- 4 x ½ x 2. 3) incised wound on right arm size 3 x ½ x ½ 4) Left hand is completely disceted and separated at the wrist joint harvestly. The left hand is of the same deadly as the injured is of the left hand ear be opposed with the injured side of the left wrist. All the above wounds are ante-mortem in nature. 3) incised wound on right arm size 3 x ½ x ½ 4) Left hand is completely disceted and separated at the wrist joint harvestly. The left hand is of the same deadly as the injured is of the left hand ear be opposed with the injured side of the left wrist. All the above wounds are ante-mortem in nature. Cronism and swinal cord-Healthy Throat—all the organs are healthy, hand is………. On both sides. Abdomen—All the organs are healthy muscles, bonds and goids- No fractures of the benes. Muscles and blood—on the right side are injured. Opinion- the cause of death in my opinion is due to shock and hemorrhage from the wounds, described above sustained by the deceased. Exbt. 7 is the post mortem report. Exbt. 7(1) is my signature. Ext 7(2) is the signature of Dr. Anil Sharma, then Joint Director of Health Services, Sivasagar which is known to me. The external injury on the right side of the neck as described in serial NO. 2 the head wounds, abpnee’s pieast to cause death of the deceased. The wounds can be caused by the dao Mat. 8 which is ……….. to me.” 19. There was no serious cross examination to the evidence rendered by PW 14 and therefore, it can safely be presumed that death of the victim was homicidal in nature and injuries which were ante - mortem in nature and which were found inflicted on his body had occasioned such homicidal death. 20. It is in this backdrop, let us consider the confession which accused person reportedly made before the Magistrate during investigation. The confession was, proved as Ext 5. A bare perusal of the confession reveals that it was made on oath. It is a settled law that while taking confession, the accused cannot be subjected to any oath and if it is done, the confession becomes inadmissible in law. Above being the situation, we have no hesitation in concluding that confession aforesaid is inadmissible in law. 21. So situated, let us consider the evidence of PW 18, Sri Pradip Kr. Borgohain. He deposes that on 17.04.2002, he was posted at Sivasagar police station as O/C, thereof. On that day the accused Cheniram Chutia of Barboruah Tekela Gaon under Amguri police station accompanied by Putul Dutta (PW 6) and Sri Monoranjan Dutta (PW 16) came to the police station with a dao in his hand. Borgohain. He deposes that on 17.04.2002, he was posted at Sivasagar police station as O/C, thereof. On that day the accused Cheniram Chutia of Barboruah Tekela Gaon under Amguri police station accompanied by Putul Dutta (PW 6) and Sri Monoranjan Dutta (PW 16) came to the police station with a dao in his hand. 22. Arriving at the police station along with the persons aforesaid, the accused person admitted to have killed the victim on that day at about 8.30 pm. He said that on that evening at about 7 pm, the victim came to the house his house and tried to drag him somewhere for which he got angry and then attacked the victim with a dao which he was using in cutting betel nut at that point of time. On receiving such information, PW 18 made a GD entry which was proved as Exbt. 8. 23. PW 20, Sri Nanda Bora, deposes that on the fateful evening i.e., on 17.04.2002, O/C received an information over phone from Addl. SP, Sivasagar that the accused person had surrendered before Sivsagar P.S after cutting a man in his courtyard. On receipt of the same, he made a G.D. entry vide GD entry No.410 dated 17.04.2002. Such GD entry was proved as Ext 9. Thereafter on being required by O/C, Amguri PS, he went to the house of accused person and found the body of the victim lying in his courtyard. 24. Next day, he visited the PO conducted inquest on the dead body, sent the same to hospital and did other things needful including seizure of Motorcycle, stated to be of the victim from the premises of the accused person and on the conclusion of investigation, he submitted charge sheet u/s 302 IPC against the accused person and forwarded him to the court to stand his trial. 25. In his evidence, PW 6 also stated that on the fateful evening accused came to his house and told him that he had hacked a man to death and left the body by the side of the road in front of his house. Such evidence of PW 6 remains almost unchallenged. The evidence of such a witness reveals that the accused did make extra judicial confession. More importantly, such confession is found to be voluntary and truthful. 26. Such evidence of PW 6 remains almost unchallenged. The evidence of such a witness reveals that the accused did make extra judicial confession. More importantly, such confession is found to be voluntary and truthful. 26. PW 2, Sri Prabin Bora, VDP Secretary deposes that on the fateful evening, the father in law of the accused came to him and reported him that since his son in law had been assaulted by victim on the road side, he got furious and requested him to pacify the accused person. Little thereafter, the wife of the accused and father also came there stating same thing. At about 8 pm, however, the village Gaon Bura came to his house and informed him that accused had taken shelter in his house after killing Makhan. 27. The evidence of PW 2, therefore, reveals that on the eventful evening, the accused being battered by the victim got infuriated and about to cause greater harm to someone, more particularly, the victim. Such evidence of PW 2 further fortifies the evidence of PW 6 who stated that the accused had confessed to killing the victim on the evening aforesaid and that too with a dao. 28. We have also found that on the eventful evening PW 16 and one Putul Dutta took the accused to the Sivsagar P.S. and handed him over to police with a dao allegedly used in committing the crime. PW 8 and PW 11 too, depose that on the aforesaid evening, they were at Sivsagar P.S. and found the accused surrendering before the O/C of the aforesaid P.S. with a dao in his hand. There is nothing on record to disbelieve such evidence and same fortifies more and more the prosecution case. 29. It is worth noting that doctor has noticed several cut injuries on the body of the victim and according to him, such injuries occasioned the death of the victim. The evidence of doctor, therefore, gives more and more credence to the testimonies rendered by PW 2, PW 6, PW 8 and PW 16 which has drawn more support from the testimonies rendered by PW 20, one of the I.Os of the case in hand. 30. On considering the evidence on record, we have also found that on the evening in question accused and the victim got involved in a quarrel on the road in front of the house of the accused person. 30. On considering the evidence on record, we have also found that on the evening in question accused and the victim got involved in a quarrel on the road in front of the house of the accused person. We have also found that the victim was the person responsible for triggering the incident in question in which, the accused got battered badly. Worse still, the victim, not being satisfied the assaulting the accused again and again, returned to the house of the accused person in the evening and tried to drag him somewhere presumably to assault him. 31. We have found that when the victim came to the house of accused person second time and tried to drag him to somewhere as stated above, the accused was cleaning battle nut with a dao in his hand. When all those facts are considered in their totality, one would find that the victim misdeeds had angered the accused person provoking him to attack, injure and kill him at the house of accused person. 32. Now, the question needs to be seen whether for such assault, the accused could have been convicted of offence u/s 302 IPC. We have found answer to such a query is clear ‘No’ since, as stated above, the victim provoked the accused profoundly and under such provocation, the accused had attacked, injured and killed him in the house of the accused person. 33. But then, in our opinion, the accused had exceeded the authority the law had given a person to protect his person and property. In other words, though the accused is held guilty of offence U/s 302 IPC by the learned Trial Court, yet, he is clearly guilty of offence U/s. 304 Part I of the IPC. Being so, the accused could not have been convicted of offence u/s 302 IPC. Rather he ought to have been convicted of offence u/s 304 Part -I IPC. 34. Accordingly, the conviction of the accused person stands altered from a conviction u/s 302 IPC to a conviction u/s 304-I of the IPC. 35. Considering all aspects, the accused is sentenced to suffer R.I for 8 years with a fine of Rs. 2,000/- i.d., R.I for another 3 months for the offence aforesaid. 36. 34. Accordingly, the conviction of the accused person stands altered from a conviction u/s 302 IPC to a conviction u/s 304-I of the IPC. 35. Considering all aspects, the accused is sentenced to suffer R.I for 8 years with a fine of Rs. 2,000/- i.d., R.I for another 3 months for the offence aforesaid. 36. The period which the accused has already spent in jail is to be set off against the period of sentence imposed on him following alteration of conviction. 37. The appeal is partly allowed as indicated above. 38. Return the LCR forthwith.