JUDGMENT : Saha, J, This appeal is directed against the judgment and order dated 09.09.2011 passed by the learned Addl. Sessions Judge, Khowai, West Tripura in ST 33 (WT/K) 2009 whereby and whereunder the learned Addl. Sessions Judge convicted the accused-appellant under Section 302 IPC and sentenced to suffer RI for life and to pay a fine of Rs. 10,000/, i.d. to payment of fine, to suffer further RI for one year. 2. Heard Mr. M.K. Roy, learned counsel for the accused-appellant as well as Mr. RC Debnath, learned Addl. PP for the State. 3. Prosecution case in brief, is that, PW 2, Smt. Raimani Jhara, a resident of Dhalabil, Subhash Colony lodged an oral ejahar to the O/C, Khowai PS that on 15.04.2009 at about 10 p.m. the accused-appellant, her son in law, came to her house and informed that his wife Rajulaxmi Jhara expired and requested her to come at his house. Immediately, thereafter, the informant, PW2 rushed to the house of the accused and found the dead body of her daughter Rajulaxmi lying on the floor with bleeding injuries on her mouth and head. Subsequently, the informant came to learn from the neighbours that on the previous night there was a quarrel between the accused Abhimanya Jhara and his wife Rajulaxmi. Then the accused under the influence of liquor brutally caused hurt on her head by two pieces of firewood at their courtyard and due to such hurt Rajulaxmi died on the spot. 4. The oral ejahar was reduced into writing by one Gouranga Ch. Deb, I/C O/C of Khowai P.S. and accordingly on 16.04.2009 Khowai P.S. Case No. 37/2009 under Section 302 IPC was registered and SubInspector Sunil Kr. Das was directed to investigate the case. After investigation, charge sheet was filed against the accused Abhimanya under Section 302 IPC. Cognizance of the offence was taken by the learned SDJM, Khowai, West Tripura under Section 302 IPC and the case was committed to the Court of learned Addl. Sessions Judge, Khowai, West Tripura as it was a case of Sessions Trial. 5. The learned Addl. After investigation, charge sheet was filed against the accused Abhimanya under Section 302 IPC. Cognizance of the offence was taken by the learned SDJM, Khowai, West Tripura under Section 302 IPC and the case was committed to the Court of learned Addl. Sessions Judge, Khowai, West Tripura as it was a case of Sessions Trial. 5. The learned Addl. Sessions Judge after hearing both the parties and on perusal of the police report framed the charge, which reads as follows: “That, you on 15.4.09 at about 8.30 p.m. at your house at Ratanpur Jumia Colony under Khowai Police Station, did commit murder by intentionally causing the death of your wife Smt. Rajulaxmi Jhara and that you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of this court. And I hereby direct that you be tried on the said charge.” 6. The accused-appellant pleaded not guilty to the charge and claimed to be tried and the defence case was of total denial. 7. To establish the case of the prosecution, it has examined as many as eight witnesses and also exhibited some documents, which were marked as Exhibit1 to 5 and also exhibited two pieces of firewood seized by the IO as weapon of offence as ExhibitMO1 series as well as the wearing apparel of the deceased, namely old yellow petticoat, as Exhibit MO2 series. 8. The defence adduced no evidence except cross examining the prosecution witnesses. On completion of the evidence of the witnesses the accused-appellant was examined under Section 313 CrPC when he denied all the incriminating evidences as alleged against him. Considering the materials on record and after hearing the learned counsel for the parties, learned Addl. Sessions Judge recorded the conviction and sentence, as stated supra. Being aggrieved and dissatisfied with the impugned judgment and order the accused-appellant preferred the instant appeal. 9. Mr. Considering the materials on record and after hearing the learned counsel for the parties, learned Addl. Sessions Judge recorded the conviction and sentence, as stated supra. Being aggrieved and dissatisfied with the impugned judgment and order the accused-appellant preferred the instant appeal. 9. Mr. Roy, learned counsel for the appellant has taken us to the FIR as well as the evidence of PW 2, Smt. Raimani Jhara who was declared hostile by the prosecution and would contend that though she stated in the FIR that there were black spots all over the body of her daughter and bleeding injuries could be seen on her face and head but in her statement before the Court she specifically stated that she did not notice any mark of injury on her dead body. In her cross-examination by the prosecution she stated that she noticed black spots of beating on the dead body of her daughter and besides that she also found blood stain on her mouth and head. He also pointed out that in her crossexamination this witness stated that the relationship of Abhimanya and her daughter was good and she did not report to the police about the cause of death of her daughter. He further submits that Exhibit3 and 4 were not affirmed and proved by the IO, which are as follows: “Exbt 3 Statement of Smti Raimani Jhara On being asked by you (I) am saying that I am a dailylabourer by profession. I cannot read and write. Yesterday dated 15.04.2009 AD on the occasion of the 1st day of Baishakh and village ‘puja’, I had come on a visit to my married daughter Rajulaxmi Jhara’s house at Ratanpur Jhumia Colony from my own house. At noon (I) took lunch at my daughter’s house itself. In the evening (I) went to Matu Jhara’s house. His house is at Rartanpur Jumia Colony itself. (I) took my dinner there at night. At about 10 PM (my) soninlaw Shri Abhimunya Jhara came to the house of Shri Matu Jhara and informed me, “Your daughter has died. Come and see her.” Hearing this bad news I instantly came to my daughter’s house with my soninlaw Abhimunya and saw that (my) daughter Rajulaxmi Jhara was lying dead on the floor of the dwelling hut. At about 10 PM (my) soninlaw Shri Abhimunya Jhara came to the house of Shri Matu Jhara and informed me, “Your daughter has died. Come and see her.” Hearing this bad news I instantly came to my daughter’s house with my soninlaw Abhimunya and saw that (my) daughter Rajulaxmi Jhara was lying dead on the floor of the dwelling hut. There were black marks of injury all over her body and there were marks of bleeding injury on the face and head. Then (I) came to know from the witnesses that yesterday i.e. on 15.04.2009 A.D. at about 8.30 P.M a quarrel had taken place between (my) daughter and soninlaw Abhimunya. Then (my) soninlaw was in a drunken state. Suddenly (my) daughter’s husband brought (my) daughter down upon the courtyard and started beating her with a piece of firewood indiscriminately. The neighbours tried to protect (my) daughter from his assault and beating but he went on dragging and beating (my) daughter severely with the firewood. As a result, all the clothes on the body of my daughter, save and except the petticoat of her wearing, got dropped off. My daughter died on the spot itself on account of being brutally beaten by her husband Abhimunya Jhara. Then (my) daughter’s husband took the dead body of (my) daughter into the dwelling hut from the courtyard and kept her (dead body) laid on the bed in the floor. I spent the night in the dwelling hut itself with my deceased daughter. (I) kept the fouryear old granddaughter Kumari gourmani Jhara with myself at night. In the morning today the people of the area apprehended/captured (my) daughter’s husband Abhimunya Jhara. In the morning (I) sent message to my son to give intimation to the police. When the police of the Khowai Police Station came to conduct investigation I lodged an oral complaint before the officerincharge of Khowai Police Station and he took down my complaint and read (it) over to me and registered/lodged a case of murder. When the police officer (‘darogababu’) was shown the spot of incident, he prepared the sketch of the said place of occurrence and after (he) had prepared the report over the dead body of my deceased daughter Rajulaxmi Jhara in front of me, I put my thumb impression on that report as a witness. When the police officer (‘darogababu’) was shown the spot of incident, he prepared the sketch of the said place of occurrence and after (he) had prepared the report over the dead body of my deceased daughter Rajulaxmi Jhara in front of me, I put my thumb impression on that report as a witness. For the killing of my daughter Rajulaxmi Jhara her husband Shri Abhimunya Jhara is totally responsible. Recorded by me Sd/Sunil Kr. Das SI of Poice, Khowai P.S. Dtd16.04.2009 Camp: Ratanpur Jumia Colony Exbt 4 Excerpt from the statement of Smti. Lalmani Jhara Yesterday dated 15.04.2009 A.D at night I was in my own house itself. There was a village ‘puja’ in our area yesterday. Abhimunya Jhara could be seen wandering in drunken state from the afternoon itself. At about 8.15 P.M suddenly on hearing a noise of altercation in the house of Abhimunya Jhara, I came towards his house from my own house and saw that Abhimunya Jhara was beating his wife Rajulaxmi Jhara severely with a piece of firewood by bringing her down in the northeast corner of the courtyard of the house and abusing her in filthy language. Seeing this incident of assault Shri Suku Jhara of (our) own village also came to the place of occurrence and we both together tried to protect Rajulaxmi Jhara from the beating/assault of her husband tried to stop/resist the stick in his hand. Then throwing away the piece of firewood of his hand and taking another piece of firewood in his hand, he continued beating his wife in the same manner. Due to being beaten/assaulted by Abhimunya Jhara, his wife Rajulaxmi Jhara sustained severe bleeding injury and died on the spot itself. Then Abhimunya Jhara picked up his dead wife in his lap from the courtyard and took her into the dwelling room of the southern ‘viti’ and kept her laid on her back on a bed in the floor with her head side pointing towards the south. Recorded by me Sd/Sunil Kr. Das SI of Poice, Khowai P.S. Dtd16.04.2009 Camp: Ratanpur Jumia Colony” 10. He further submits that the IO of the case, namely, SI Sunil Kr. Das was neither produced nor examined by the prosecution. He has also taken us to the post mortem report of the deceased and the evidence of Dr. Recorded by me Sd/Sunil Kr. Das SI of Poice, Khowai P.S. Dtd16.04.2009 Camp: Ratanpur Jumia Colony” 10. He further submits that the IO of the case, namely, SI Sunil Kr. Das was neither produced nor examined by the prosecution. He has also taken us to the post mortem report of the deceased and the evidence of Dr. Gautam Debbarma, PW5 and contended that the Doctor has not given any specific opinion in his report as to whether the cause of death of the deceased was homicidal, suicidal or accidental. Unless there is a definite opinion of homicidal death, the accused cannot be convicted for commission of murder. 11. In support of his aforesaid contention, he has placed reliance upon the decision of the Apex Court in CK Ravendran Vs. State of Kerala, 2000 CRI.L.J. 497 wherein the Apex Court while considering the post mortem report of that case, noted that, “when the doctor itself has not been able to give a definite opinion as to the injuries found on the dead body, whether could be antemortem or postmortem and the dead body itself was found on 30th of March, 1988 and Yeshoda alleged to have been seen in the company of accused last on 3388, it is difficult for us to sustain the conclusion of the High Court that the death of Yeshoda can only be homicidal. There is not an iota of material from which the High Court could have jumped to the aforesaid conclusion and we, therefore, have no hesitation to hold that the conclusion of the High Court that Yeshoda met a homicidal death is wholly erroneous.” 12. It is contended by Mr. Roy that the whole prosecution case is based on circumstantial evidence. Thus, it is the duty of the prosecution to prove its case beyond reasonable doubt that except the accused no other person has committed the murder of the deceased but the prosecution failed to do so. In support of his aforesaid contention, he has placed reliance on a decision of the Gauhati High Court, Agartala Bench in Sri Harilal Hrishi Das Vs. State of Tripura, 2013 CRI.L.J. 1802, particularly, paragraph 17, 18 and 19 which are as follows: “17. In support of his aforesaid contention, he has placed reliance on a decision of the Gauhati High Court, Agartala Bench in Sri Harilal Hrishi Das Vs. State of Tripura, 2013 CRI.L.J. 1802, particularly, paragraph 17, 18 and 19 which are as follows: “17. From the cumulus of unexplained ends as well as suspicions circumstances, it appears unsafe to rely on the evidence of the P.W. 7 for returning a finding of the conviction against the appellant as his conduct does not instill any confidence in the Court and the attempt of the prosecution to establish the guilt of the appellant in commission of the offences by the ornaments has failed as the chain was broken for nonexamination of the rickshawpuller namely, Pradip as this Court did not find evidence of the PW. 13 trustworthy for embellishment to the extent that appellant has made an extrajudicial confession to him, but he did not disclose it to anyone. The Law is now fairly settled. In Padala Veera Reddy v. State of Andhra Pradesh & Ors. as reported in 1989 Supp (2) SCC 706 : ( AIR 1990 SC 79 ) whereby the Apex Court held the following test unless satisfied no person can be convicted on the basis of circumstantial evidence : "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 18. In this regard, the decisions of the Apex Court in the similar line are many. A few amongst them are : 1. Hanumant Govind Nargundkar v. State of M.P. as reported in AIR 1952 SC 343 2. Sharad Birdhichand Sarda v. State of Maharashtra as reported in (1984) 4 SCC 116 : ( AIR 1984 SC 1622 ) 3. State of U.P. v. Ashok Kr. A few amongst them are : 1. Hanumant Govind Nargundkar v. State of M.P. as reported in AIR 1952 SC 343 2. Sharad Birdhichand Sarda v. State of Maharashtra as reported in (1984) 4 SCC 116 : ( AIR 1984 SC 1622 ) 3. State of U.P. v. Ashok Kr. Srivastavaas reported in (1992) 2 SCC 86 : ( AIR 1992 SC 840 ) 4. Bodhraj v. State of J&K as reported in (2002) 8 SCC 45 : (AIR 2002 SC 3164). 5. Bharat v. State of M.P. as reported in (2003) 3 SCC 106 : ( AIR 2003 SC 1433 ) 6. Deepak Chandrakant Patil v. State of Maharashtra as reported in (2006)10 SCC 151 : ( AIR 2006 SC 1708 ) 7. State of Goa v. Sanjay Thakran as reported in (2007) 3 SCC 755 : (AIR 2007 SC (Supp) 61).. 19. The Apex Court sounded the caution that a great care must be taken in evaluating the circumstantial evidence and if the evidence relied on is reasonably capable of two inferences or found susceptible to improbabilities, the one in favour of the accused must be accepted. By the standard of the tests as referred, the piece of the circumstantial evidence has to be discarded. Moreover, the evidence of the PW.7 falls in the wholly unreliable category inasmuch as the shrouding context has not been removed by cogent evidence. The defences silence and denial substantially corroded the prosecution's case. It could not be salvaged to succeed in a sustainable conviction. The Apex Court in Lakshmi Singh & Ors. v. State of Bihar as reported in (1976) 4 SCC 394 : (AIR J976 SC 2263) held : "It is well settled that it is not necessary for the defence to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the court to reject the prosecution version".” 13. He further submits that the evidence of the prosecution witnesses, particularly, PWs 2 and 3, who were declared hostile by the prosecution, supported the case of the defence and the benefit of such evidence should go to the accused and not to the prosecution. In support of his aforesaid contention he has placed reliance on Kunju Muhammed alias Khumani and Anr. Vs. In support of his aforesaid contention he has placed reliance on Kunju Muhammed alias Khumani and Anr. Vs. State of Kerala, (2004) 9 SCC 193, particularly paragraph 16 which is as follows: “16. We are at pains to appreciate this reasoning of the High Court. This witness has not been treated hostile by the prosecution, and even then his evidence helps the defence. We think the benefit of such evidence should go to the accused and not to the prosecution. Therefore, the High Court ought not to have placed any credence on the evidence of such unreliable witness.” 14. He further submits that even if the prosecution story is wholly believed that the accused gave firewood blow to the deceased then also it would not be a case under Section 302 IPC as the alleged offence is without any premeditation and of a sudden fight in the heat of passion upon a certain quarrel due to intoxication. According to him, the case of the prosecution would at best fall under Section 325 IPC and even if not, then under Section 304 PartII IPC. In support of his aforesaid contention he has placed reliance on a decision of the Apex Court in Shaikh Karimullah @ Babu and Ors. Vs. State of A.P., AIR 2009 SC 1711 , wherein the Apex Court considering the facts of that case, inter alia, that all the accused persons armed with sticks and iron rod had beaten the deceased with those sticks just above the left eye and on the face, held that “It is also accepted that except PW1 who stated that the appellant assaulted the deceased with a stick, the other purported eye witnesses stated that the appellant had given fist blow. Considering the evidence of witnesses as brought on record the appropriate conviction would be in terms of Section 325 IPC and not Section 302 IPC. Custodial sentence of three years would meet the ends of justice.” 15. He finally contended that the appellant is in custody for more than six years. Thus, it would meet justice if the accused-appellant is convicted under Section 304 PartII IPC and sentenced to suffer imprisonment for the period he has already undergone. 16. Per contra, Mr. Debnath while countering the submission of Mr. He finally contended that the appellant is in custody for more than six years. Thus, it would meet justice if the accused-appellant is convicted under Section 304 PartII IPC and sentenced to suffer imprisonment for the period he has already undergone. 16. Per contra, Mr. Debnath while countering the submission of Mr. Roy would contend that the prosecution has proved the fact as the dead body of the deceased was found in the house of the accused with injuries. He also submits that as far as the fact of drunkenness is concerned, it is well established by this time that drunkenness is not an excuse for committing heinous act and it differs from insanity. To seek excuse under drunkenness several facts are to be taken into consideration and one has to establish the ingredients as contemplated under Section 85 and 86 of IPC. In support of his aforesaid contention he has placed reliance on Mirza Ghani Baig V State of Andhra Pradesh rep. by Public Prosecutor, 1997 (2) Crimes 19, particularly paragraph 9 and 10 of the said decision, which are as follows: “9. The defence took the plea that at the time of causing the incident the accused was drunk and he was not in a position to understand what he was doing. At no point of time there were quarrels between the deceased and the accused and there is no evidence to show that the accused was illtreating the deceased or harassing her or demanding dowry. On the other hand, the evidence is to the effect that they were living happily and gave birth to three children. As far as the fact of drunkenness is concerned, that has been confirmed by the dying declaration of the deceased Ex. P.7. a portion of which is marked in Ex. D. 3. But the fact as to the accused coming fully drunk is silent in the dying declaration recorded by P.W.4. As to the act done by the accused is concerned, there is clear information. The correctness or otherwise of the conviction and sentence ordered by the trial court depends upon how far the drunkenness is established. It is a well-established principle of law that drunkenness is not an excuse for committing heinous act and it differs from insanity. As to the act done by the accused is concerned, there is clear information. The correctness or otherwise of the conviction and sentence ordered by the trial court depends upon how far the drunkenness is established. It is a well-established principle of law that drunkenness is not an excuse for committing heinous act and it differs from insanity. To seek excuse under drunkenness, several factors are to be taken into consideration and one has to establish the ingredients as contemplated under sections 85 and 86 of the Indian Penal Code Section 86 reads as follows: "Offence requiring a particular intent or knowledge committed by one who is intoxicated: In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will." An act done is not an offence unless done with a particular knowledge or intent. A person who does an act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will. Section 85 reads as follows : "Act of a person incapable of judgment by reason of intoxication caused against his will: Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will." 10. Thus, it is clear from Section 85 that voluntary drunkenness is no excuse for commission of a crime and the Court will not attach any importance to the fact that the accused was drunk at the time of commission of the crime. Thus, it is clear from Section 85 that voluntary drunkenness is no excuse for commission of a crime and the Court will not attach any importance to the fact that the accused was drunk at the time of commission of the crime. In order to invoke the plea of drukenness the correct test to be applied is by reason of intoxication whether the accused person was incapable of knowing the nature of the act and that the thing which intoxicated him was administered to him without his knowledge. In Enrique F. Rio v. State 1975 Crl. L.J. 1337, it was held : "Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does riot rebut the presumption that a man intends the natural consequences of his act." It was further held : "However, in view of Section 86 Indian Penal Code the accused should be imputed with the knowledge of his act. This takes out his case from the rigour of a case of murder to one of culpable homicide not amounting to murder."” 17. To appreciate the rival contentions of the learned counsel for the parties, it would be proper on our part to reassess and reappreciate the evidence of the prosecution witnesses. PW1, Nihar Debbarma, a resident of Ratanpur, in his evidence stated that one neighbour of his locality informed him that Abhimanya Jhara in intoxicated condition killed his wife and having received such information, he communicated the same to the Khowai P.S. over telephone and accordingly, the police party came to his house and along with the police party, he rushed to the spot. On reaching the spot, he found that the neighbouring people had already detained the accused Abhimanya and his wife lying in dead condition in his room. This witness is also a witness of Surathal report as well as seizure. 18. On reaching the spot, he found that the neighbouring people had already detained the accused Abhimanya and his wife lying in dead condition in his room. This witness is also a witness of Surathal report as well as seizure. 18. PW2, Smt. Raimani Jhara, the mother of the deceased was declared hostile by the prosecution as she had resiled from her earlier statement and stated that she did not notice any mark of injury on the dead body of her deceased daughter. In her cross, she stated that she did not report to the police about the cause of death of her daughter. 19. PW3, Lalmani Jhara was also declared hostile by the prosecution. In her evidence, she stated that getting information regarding the death of Rajulaxmi Jhara, the wife of Abhimanya, she went to their house and found her lying dead wearing only a petticoat in the lower portion and there were mark of injuries on her body. In cross by the prosecution, she stated that she had stated to the police that on 15.04.2009 in the night she was at her house and day before that day they celebrated puja at their village and Abhimanya was found moving in the drunken state and at about 8.15 p.m. she heard sound of quarrel from the house of Abhimanya. She went to that house and noticed that Abhimanya was causing hurt to his wife Rajulaxmi Jhara, lying her down by means of a firewood and was also abusing her. Her statement under Section 161 CrPC was marked was Exhibit 4 but the same was not proved by the IO who recorded the statement as the said IO was not produced by the prosecution. In her cross examination she also stated that she did not state to the police anything. She also did not state anything in the Court that she stated to the police that she had witnessed that Abhimanya assaulted his wife with a firewood and she tried to stop him. When the Court asked her as to whether her statement was falsely recorded by the Court she did not say anything and the Court recorded her demeanor. 20. PW4, Shyamal Debbarma is one of the IO who filed the charge sheet. 21. PW5, Dr. When the Court asked her as to whether her statement was falsely recorded by the Court she did not say anything and the Court recorded her demeanor. 20. PW4, Shyamal Debbarma is one of the IO who filed the charge sheet. 21. PW5, Dr. Gautam Debbarma, is the Medical Officer who was posted at Khowai Hospital on 16.04.2009 and conducted the post mortem examination over the body of the deceased. It is stated by this witness that the report is silent about the time of examination and the name of the person who identified the body. According to his report, the cause of death was due to massive hemorrhage, ruptured spleen, head injury and multiple bruises. He also stated that on perusal of the report it is not possible to say whether the death of the deceased was homicidal, suicidal or accidental. In his cross, he has stated that he did not mention in the post mortem report about the injury found in the body of the deceased. 22. PW6, Sarajit Debbarma, is a seizure witness of firewood which was allegedly used for assaulting the deceased and he has also identified the seizure list as well as the seized articles which were marked as Exhibit 2/1 and Exhibit MO1 series. 23. PW7, Ramani Debbarma is also a seizure witness relating to the seizure of wearing apparel, namely, petticoat. 24. PW8, Sukhu Jhara, is the witness who visited the house of the accused and found the dead body in his courtyard and he could not see properly due to his old age. 25. After having given our anxious thoughts to the submission of the learned counsel for the parties as well as the evidences on record, it is established that the deceased was found dead in the house of the accused with cut wound in the occipital areas about 3”X1”, cut wound in the right side of upper lip about ½” and also cut wound of about ½” below the right eye along with some bruises. 26. Now question is how and by whom the deceased was killed. Even if the prosecution story is considered in its true sense then also it would be difficult for us to come to any conclusion as there is no eye witness. More so, no charge was framed under Section 34 of the IPC. 26. Now question is how and by whom the deceased was killed. Even if the prosecution story is considered in its true sense then also it would be difficult for us to come to any conclusion as there is no eye witness. More so, no charge was framed under Section 34 of the IPC. Additionally, there are discrepancies in the evidence of the witnesses on account of the role of the accused. One of the witness stated that the accused has assaulted the deceased with firewood while he was in drunken condition and the other though admitted in cross by the prosecution regarding his statement under Section 161 CrPC but subsequently stated that he did not state anything to the police. 27. PW5, the Doctor also did not give any opinion that the death of the deceased was homicidal in nature. In absence of any such opinion from an expert like the Doctor, it is also very difficult on our part to come to a conclusion that the accused had any intention to kill his deceased wife. Rather, according to us, even if the prosecution story is believed that the dead body of the deceased was found in the courtyard of his house with some injuries, as stated by PW 5, the Medical Officer, then also it is culpable homicide not amounting to murder. 28. Section 304 IPC provides punishment for culpable homicide not amounting to murder with imprisonment for life or imprisonment for either description which may extend to 10 years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. As noticed hereinabove, there was no intention to cause death on the part of the accused appellant. However, inferences can be drawn that injuries caused by him were such bodily injuries as they were likely to cause death. Therefore, the case falls within the ambit of Section 304 Part-II IPC. 29. Therefore, the impugned judgment passed by the learned Addl. Sessions Judge cannot be upheld and accordingly, the same is set aside and the accused is convicted under Section 304 Part-II of IPC for committing offence of culpable homicide not amounting to murder. 30. Therefore, the case falls within the ambit of Section 304 Part-II IPC. 29. Therefore, the impugned judgment passed by the learned Addl. Sessions Judge cannot be upheld and accordingly, the same is set aside and the accused is convicted under Section 304 Part-II of IPC for committing offence of culpable homicide not amounting to murder. 30. Our attention was drawn to the fact that the accused has already suffered imprisonment for a period of about more than six years and we have also noticed that there was no premeditation and preplan. Considering the age and family accountability of the accused and the facts and circumstances, as stated supra, we are of the opinion that it would meet the ends of justice if the accused is sentenced to the period already undergone. Accordingly, the appellant is sentenced to suffer imprisonment for the period he has already undergone. 31. In the result, the appeal is partly allowed. The accused-appellant shall be released forthwith, if not required in any other case. Send down the LCR.