ORDER (ORAL) 1. This appeal is directed against the judgment of conviction dated 10/07/2012 of the learned Additional Sessions Judge, Cachar, Silchar in Sessions Case No. 15/09, by which the accused appellant has been convicted for the offence punishable under Section 304(II) IPC. Upon such conviction he has been sentenced to undergo R.I. for 3 years with fine of Rs. 3,000/- and in default to undergo S.I. for further one month. 2. According to the prosecution case, on 21/11/2008 at about 7-8 p.m. the accused appellant murdered the deceased at Tarapur Grant village by assaulting him with a bamboo stick in the course of scuffle that ensued between the two occasioned by the deceased’s act of stealing the paddy of the accused. Ext. 2 is the FIR that was lodged by PW-2. Police conducted inquest over the dead body and arrested the accused appellant and seized the articles i.e. the bamboo stick and one nylon bag vide Ext. 1 seizure list. Post-mortem was conducted at Silchar Medical College and Hospital. Ext. 3 is the post mortem report submitted by the Medical Officer (PW-5). 3. On completion of the investigation, charge sheet was submitted under Section 302 IPC and in due course charge was framed against the accused appellant under the said section. On being read over and explained the charge, the accused appellant pleaded not guilty and claimed to be tried. 4. During trial, prosecution examined 7(seven) witnesses and the accused appellant was also examined under Section 313 Cr.P.C. The learned trial Court upon raising the following issues for determination, having answered the same in the affirmative vide the impugned judgment of conviction, the accused appellant has preferred this appeal. “(1) Did the death of the accused occur as a result of beating inflicted upon him ? if so; (2) Did the accused administer beating to the deceased, thereby causing his death ? if so; (3) Whether it was with the intention of causing death or with intention to cause such bodily injury as is sufficient to cause death ? if not; (4) Did the accused inflict beating to the deceased knowing that such act is likely to cause death, although without intention of causing death or bodily injury likely to cause death ? if not (5) Did the accused cause the death of the victim by a rash or negligent act nor amounting to culpable homicide ?” 5. Mr. if not; (4) Did the accused inflict beating to the deceased knowing that such act is likely to cause death, although without intention of causing death or bodily injury likely to cause death ? if not (5) Did the accused cause the death of the victim by a rash or negligent act nor amounting to culpable homicide ?” 5. Mr. B. Kaushik, learned counsel representing the accused appellant submits that the learned Trial Court committed manifest error of law and fact in convicting the accused appellant solely on the basis of the purported extra judicial confession. Referring to the evidence on record, he submits that there being inherent contradictions in the prosecution evidence, the impugned judgment of conviction is liable to be interfered with. He has also placed reliance on the decision of the Apex Court reported in 2002 (6) SCC 403 (Sahadevan and another Vs. State of Tamil Nadu). Mr. D. Das, learned APP, Assam on the other hand submits that almost all the prosecution witnesses having stated about the incident narrated by none other than the accused himself, the judgment of conviction is not required to be interfered with. 6. I have given my anxious consideration to submissions made by the learned counsel for the parties and have also perused the entire evidence on record. 7. As submitted by the learned counsel for the appellant, the impugned judgement of conviction is based on the extra judicial confession. PW-1 in his deposition stated that having come to know about the incident he had gone to the house of the accused appellant where he found the dead body of the deceased lying in the compound. He could see the mark of injury also on the dead body. On being asked, the accused appellant told him that about 3’O clock at night, two persons were seen taking away paddy from his paddy field and on being chased, one of them could be caught, who was the deceased. The accused also told him that he had given a blow to the deceased with a bamboo and he fell down on the ground and he caught hold of him. He was already dead. This witness proved material Ext. 1 as the piece of seized bamboo. The accused also told him that he had given a blow to the deceased with a bamboo and he fell down on the ground and he caught hold of him. He was already dead. This witness proved material Ext. 1 as the piece of seized bamboo. In his cross examination, he stated that he did not see the incident himself but came to know that the accused appellant had caught hold of one thief in his house. He denied the suggestion that he did not state before the police that the deceased was chased and struck by the accused appellant as a result of which he fell down and died. 8. PW-2 in his deposition stated that he had gone to the house of the accused appellant and found the deceased lying dead and on being asked the accused told him that the deceased had come to his paddy field to take away paddy and so he killed him. Nothing contrary could be brought in the cross examination. 9. PW-3 was declared hostile. According to him, the deceased had dashed against a tree on being chased by the accused appellant, on being raised hue and cry when they were found engaged in stealing paddy. In the cross examination he denied that he had stated before the police that it was the accused appellant who had assaulted the deceased and he died. 10. PW-4 is another witness who in his deposition stated that on receipt of the information that one person was killed by the accused appellant he had visited his house and found the deceased lying there. He also found the accused appellant near the dead body and on being asked he told him that as against the deceased committed theft of his paddy and he had killed him. He also confessed that the deceased was killed with a lathi. A bamboo lathi was found in the place of occurrence and police seized the same (Ex.1). 11. PW-5 is the doctor who conducted the post mortem examination on the dad body of the deceased and found the following :- “(1) Multiple linear pressure abrasions of different sizes and shapes placed at different directions of planes present over front of thorax (Chest wall) ; (2) Contusion of the whole of frontal scalp found on reflection ; (3) Soft tissue all over the chest wall found contused on reflection. (4) Fracture of 3rd and 6h rib of right side and 4th to 7th ribs of left side. (5) Pleurae found lacerated on both sides ; (6) Both lungs lacerated and collapsed with approximate 1 liter of liquid blood on thorax cavity. Skull found healthy, Vertebral column found healthy, Brain found semisolid in consistency. In the adomen, abdominal wall showed contused on upper part of reflection, Peritonoum found distended with gas and 1.1/2 liter of liquid blood. Liver showed split rupture at the middle part anteriorly. Other vertebral organs show early decomposition change.” 12. According to the opinion rendered by him, death was due to haemorrhage and shock resulting from the injury sustained which was ante-mortem caused of blunt object and homicidal in nature. Approximate time since death was 48 to 72 hours. He proved the Ext. 3 and Ext. 4 post mortem report and inquest report along with his signatures. 13. PW-6 is the Gaon Panchayat President, who in his deposition stated that on being informed about the incident, he went to the house of the accused appellant and found the dead body of the deceased in his compound. On being asked, the accused told him that on the previous night, 2 persons came to his house for stealing paddy. He caught hold of the deceased and assaulted him with a piece of bamboo, as a result of which the deceased died. 14. PW-7 is the I.O. who also stated in his deposition that on being queried, the accused appellant reported that he had killed the deceased by assaulting him with a piece of bamboo. He also generally stated about the investigation that was carried out. In the cross examination the defence could extracted some discrepancies which are considered to be vital, inasmuch as, the cross examination could not dislodge this witness from what he has stated in the examination-in-chief. 15. The learned trial Court considering the evidence, has convicted and sentenced the accused appellant as aforesaid. The decision on which the learned counsel for the appellant has placed reliance i.e. Sahadevan (Supra) is on the principles relating to conviction on the basis of extra judicial confession. In paragraph 16 of the judgement, the Apex Court has laid down the principles, which would make the extra judicial confession and admissible piece of evidence capable of forming the basis of conviction of an accused. In paragraph 16 of the judgement, the Apex Court has laid down the principles, which would make the extra judicial confession and admissible piece of evidence capable of forming the basis of conviction of an accused. The principles are :- “(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 16. In the instant case, the prosecution witnesses unequivocally with minor variations here and there stated the narration of the fact by the accused appellant as to how the deceased came to be killed. It is apparent from their evidence that two persons including the deceased had come to the house of the accused with a view to commit theft of paddy from his paddy field. When the accused appellant came to know about the same, he chased the deceased and thereafter assaulted him allegedly with a bamboo stick. Some of the witnesses identified the said bamboo stick as bamboo lathi. As a result of such assault, the deceased fell down and eventually died. 17. However, discussing the point Nos. 3, 4 and 5 referred to above for determination, the learned trial Court has rightly held that there was no pre-meditation towards commission of the act rather it was done in the heat of the moment when the accused saw the deceased stealing his paddy. In that view of the matter, the learned trial Court has rightly held that it would not be an offence punishable either under Section 302 or 304(1) IPC. It has rightly been held that the accused appellant is guilty of offence punishable under Section 304 (II) IPC. In that view of the matter, the learned trial Court has rightly held that it would not be an offence punishable either under Section 302 or 304(1) IPC. It has rightly been held that the accused appellant is guilty of offence punishable under Section 304 (II) IPC. As regard the plea that the accused appellant cannot be convicted solely on the basis of extra-judicial confession, when the testimony of the PWs are tested in reference to each other and also in reference to the opinion rendered by the Medical Officer (PW-5), it is absolutely clear that the accused appellant is guilty of the offence punishable under Section 304 (II) IPC. 18. All the PWs categorically and unequivocally stated about the narration of the fact of the incident by the accused appellant and as to how the deceased was given a blow and he died. Such extra-judicial confession is not even remotely suggested to be involuntary and it inspires confidence in view of the fact that the dead body of the deceased was found in the courtyard of the accused appellant, coupled with the fact that he was present by the side of the dead body and also stated before the PWs that because of the incident of theft, he had assaulted the deceased. There is also no material discrepancies and inherent improbabilities in the extra judicial confession. 19. Above being the position, I see no reason to interfere with the impugned judgement of conviction. This now leads us to the final leg of submission made by the learned counsel for the accused appellant that he being an old man, is required to be dealt with leniently while imposing the sentence of conviction under Section 304 (II) IPC. This aspect of the matter has been taken into consideration by the learned Trial Court while sentencing him to undergo RI for 3 years. At that point of time, he was 65 years of age. Pursuant to the order dated 14/08/2012 passed in Criminal MC No. 630/2012, he is presently on bail. As submitted by Mr. D. Das, learned APP, Assam, during the period of investigation, the accused appellant was in imprisonment for about 4 (four) months. Presently he is about 68 years of age with the burden of his family. 20. Pursuant to the order dated 14/08/2012 passed in Criminal MC No. 630/2012, he is presently on bail. As submitted by Mr. D. Das, learned APP, Assam, during the period of investigation, the accused appellant was in imprisonment for about 4 (four) months. Presently he is about 68 years of age with the burden of his family. 20. Considering all these aspects of the matter, the sentence of conviction for the offence punishable under Section 304 (II) IPC shall stand reduced to 2 (two) years. Needless to say that the period of imprisonment shall stand set off under Section 428 Cr.P.C. 21. Appeal stands partly allowed to the extent indicated above. The accused appellant shall now surrender before the learned trial Court to undergo remaining period of sentence on or before 30/04/2015. 22. Let the case records be transmitted to the learned court below along with a copy of this judgement.