JUDGMENT & ORDER (N. Chaudhury, J) This criminal appeal discloses yet another incident where an otherwise law abiding citizen becomes a criminal being victim of circumstances. In this case, the prosecution story is that accused Bijoy Baruah caused death of his wife Juri Baruah by dealing one fatal blow on her head by a crowbar at 5 a.m. on 22.09.2010. He thereafter himself went to the police station and surrendered handing over the crowbar by which he had dealt the blow on his wife. The brother of the accused, Bijoy Baruah, lodged an ejahar with Officer-in-Charge of Amguri Police Station on the following day informing about the incident. He disclosed therein that immediately after the incident had occurred, he came to know about it from the minor children of the victim and the accused and then went to the place of occurrence. He informed the VDP Secretary, Sri Parag Duwarah and also called 108 Ambulance services. However, as the ambulance was not available he searched for another vehicle and informed Akan Gogoi and Manik Gogoi, the uncle of the deceased. They came and went away without doing anything and thereafter the information was being given to the police. Amguri P.S. Case No. 121/2010 under Section 302 of the IPC was registered in regard to the incident and Sub Inspector Lohit Chetia was entrusted to investigate into the matter. Having completed investigation, police submitted charge sheet against the accused Bijoy Baruah under Section 302 of the IPC and thereupon the case was committed to sessions. 2. The learned Sessions Judge by order dated 01.11.2011 framed a charge under Section 302 of the IPC against the accused. The same on being read over to him, he pleaded not guilty and claimed to be tried. 3. In course of trial, prosecution examined as many as 11 witnesses. PW 1, Buddha Baruah, the informant who proved ejahar as Ext. 1 and stated that his house is about 12 feet away from the house of the accused. All on a sudden, he heard hue and cry coming from the house of his brother and then saw his brother came out holding a crowbar on his hand and went away. His minor son Biman Baruah (PW 8) was aged about 11 years at that time and he informed PW 1 that accused had killed Juri Baruah by assaulting with a crowbar. His minor son Biman Baruah (PW 8) was aged about 11 years at that time and he informed PW 1 that accused had killed Juri Baruah by assaulting with a crowbar. The PW 1 informed the VDP Secretary, Parag Duwarah as well as other people. He went to the place of occurrence and saw the dead body of Juri Baruah and accordingly a written ejahar being Ext. 1 was filed. Police and Magistrate came and examined the dead body. Ext. 2 is Inquest Report wherein his signature is Ext. 2(4). After the occurrence, accused himself went to the police station holding the crowbar and it was seized by the police vide Ext. 3. Ext. 3(1) is the signature of PW 1 and Mat. Ext. 1 is the crowbar. His mobile phone was also seized by the police and Mat. Ext. 2 is the said phone. The dead body was taken thereafter for post-mortem examination. 4. PW 2, Parag Duwarah is the VDP Secretary. He corroborated the statement of PW 1. He deposed that on being informed by PW 1, he came to the place of occurrence and knew about the incident and that time Juri Baruah was alive. A Maruti Van was brought and injured was taken to hospital where she was declared dead. When PW 2 had come to the place of occurrence, the accused had already reached to the police station to surrender. PW 2 proved his signature on Ext. 2, Inquest Report, as Ext. 2(2). 5. PW 3, Bimal Baruah, another brother of the accused. He also said that hearing hulla at the house of the accused he went there. On his way, he met the accused who was going to Amguri Police Station at that time with a crowbar on his hand. After reaching the house of the accused, he saw that Juri Baruah was lying injured on the floor and she was bleeding at that time. Immediately he went to inform PW 2 who came in the house of the accused and thereafter a Maruti Van was arranged to take the victim to the hospital. Biman Baruah (PW 8) is the minor son of the accused who is about 10/11 years old and he disclosed to PW 3 that accused had killed his mother. Immediately he went to inform PW 2 who came in the house of the accused and thereafter a Maruti Van was arranged to take the victim to the hospital. Biman Baruah (PW 8) is the minor son of the accused who is about 10/11 years old and he disclosed to PW 3 that accused had killed his mother. In course of his cross examination, this witness disclosed that husband of the sister of Juri Baruah used to frequently visit the house of the accused and the accused suspected his wife in this regard. Accused used to quarrel with deceased over that issue. Even on the previous night, the said husband of the sister of the victim had come to their house in the absence of the accused and this is why there was a quarrel between the accused and the victim in the morning. 6. PW 4, Manik Gogoi, is the brother of the victim. He said that he came to know about the incident at around 7 a.m. on the same day and then went to the house of the accused to see the dead body. The neighbours told PW 4 that accused had already gone to the police station with a crowbar. He came back and thereafter police examined him. He denied of having any knowledge as to why his sister was killed by the accused. PW 5, Deben Baruah, went to the place of occurrence and then PW 8, Biman Baruah told him that his father had killed his mother inside the house. He did not proceed further but after police came, he went inside and saw the dead body. He was inquest witness. 7. Dr. Pradip Kr. Saikia, a senior Medical and Health Officer, was examined as PW 6. He held post mortem over the dead body and gave the opinion that the victim died due to severe penetrating head injury which was ante-mortem in nature. Ext. 4 is the post-mortem report and Ext. 4(1) is his signature. The injury, according to the PW 6, was sufficient to cause death of a person in ordinary course of nature and can be caused by the Mat. Ext. 1. 8. PW 7, Parvez Ahsan Choudhury, was Judicial Magistrate First Class at that time. He recorded the confessional statement of the accused. 4(1) is his signature. The injury, according to the PW 6, was sufficient to cause death of a person in ordinary course of nature and can be caused by the Mat. Ext. 1. 8. PW 7, Parvez Ahsan Choudhury, was Judicial Magistrate First Class at that time. He recorded the confessional statement of the accused. According to him, on 23.09.2010, the accused was produced before him at about 2 p.m. as per the direction of the learned Chief Judicial Magistrate, Sivasagar in connection with Amguri Police Station Case No. 121/2010 corresponding to G.R. Case No. 1211/2010 under Section 302 of the IPC for recording confessional statement of the accused. He explained to the accused that he was not bound to make confessional statement before him but still the accused insisted. Then he directed to keep the accused in judicial custody for reflection and to produce him on the following day at 2 p.m. It was explained to him again that he was not a police officer but a Magistrate and that the accused is not bound to confess his guilt before him. Rather, this confession would be used against him as it would be reduced into writing. It was also explained to the accused that if he did not confess then he would not be sent back to the police custody again. Even thereafter the accused insisted that he wanted to confess his guilt voluntarily before the Magistrate without being influenced by anybody. There was no police personnel present at that time and accordingly Ext. 5 confessional statement was recorded. Ext. 5(1) is the relevant portion where the accused confessed his guilt and Ext. 5(2) to Ext. 5(12) are the signatures of the accused Bijoy Baruah. In cross examination, he stated that the accused Bijoy Baruah was found mentally disturbed at the time of recording the confessional statement. The confessional statement is quoted below for ready reference:- “Statement Ext. 5(1) Sd/- illegible Sess. Judge, Sivasagar, 5.8.12 My ‘Salpati’ (wife’s sister’s husband, i.e. brother-in-law) frequently used to visit my house. I heard from my neighbours that my wife was having an illicit relationship with my brother-in-law. But I did not believe it. Around 7 p.m. on 15/17th September, I was sitting in my elder brother’s house situated nearby. From there I returned home. Reaching home I saw my children studying in the outer room. I heard from my neighbours that my wife was having an illicit relationship with my brother-in-law. But I did not believe it. Around 7 p.m. on 15/17th September, I was sitting in my elder brother’s house situated nearby. From there I returned home. Reaching home I saw my children studying in the outer room. By entering the kitchen I saw my wife and brother-in-law (wife’s sister’s husband) in a compromising position. I rebuked him and sent him away from my home. On the following morning I called my brother-in-law home. He came and then I asked him not to visit our house ever. But my wife went to my brother-in-law’s place and brought a mobile phone from him and kept kit hidden. On the previous evening of the day of occurrence, I saw that mobile phone in her hand and questioned her. She retorted, “why do you want to know?” Thereafter my wife misbehaved with me and called me a coward. On the following day, after getting up, I asked my wife to give me tea. But my wife did not get up and instead asked me to prepare tea on my own. Hearing so, I became angry, and by bringing the crowbar lying outside I assaulted my wife on her legs and waist. Again when I was about to assault on her arm, she stood forward as a result of which the blow landed on her head and she died. Thereafter I went to the police station and surrendered there. I also took the crowbar along with me. Sd/- Shri Bijay Boruah Ext. 5(12) Sd/- illegible Sessions Judge, Sivasagar, Assam 9.8.12” 9. PW 8 is the sole witness in the case who was present at the time of occurrence. He was a student of Class VIII at that time and stated that deceased was his mother who died about 2 years ago. He stated that at the time of occurrence, his younger brother, sister and parents were at home. Prior to the occurrence, his mother’s younger sister’s husband, namely, Pinku Baruah used to visit daily in the absence of his father and used to stay at night. He saw Pinku Baruah sleeping with his mother at night. His father also saw it and had quarrelled with his mother. He denied to have seen who had killed his mother. Prior to the occurrence, his mother’s younger sister’s husband, namely, Pinku Baruah used to visit daily in the absence of his father and used to stay at night. He saw Pinku Baruah sleeping with his mother at night. His father also saw it and had quarrelled with his mother. He denied to have seen who had killed his mother. This part of his witness is contrary to the depositions of PW 1, PW 3 and PW 5 who stated that PW 8 had informed them about killing of the victim by the accused with a crowbar. Be that as it may, this would not affect the fate of the prosecution case in so far as the commission of offence is concerned. This is because, the accused himself made a judicial confession vide Ext. 5 that he had killed his wife. There was nobody else at the time of occurrence and the incident had taken place inside the house. 10. PW 9, Pabitra Kurmi and PW 10, Bhupen Garh are two police constables who deposed to prove that accused himself had walked into the police and surrendered with a crowbar on his hand and made the confession. PW 11, Lohit Chetia, is a Sub Inspector of Police and he was the I/O in the case. He stated the whole prosecution story and the manner and method as to how the investigation was held. He made mention about the statement of the accused before him under Section 161 of Code of Criminal Procedure and subsequent judicial confession before the Judicial Magistrate First Class (PW 7). 11. Upon consideration of the aforesaid evidence, the learned Sessions Judge examined the accused under Section 313 of the Code of Criminal Procedure. Though he denied to have committed any offence initially but at the end he made following disclosure:- “My ‘salpati’ (husband of one’s wife’s sister, brother-in-laws) Pinku Bora was having an illicit relation with my wife Juri Baruah. In this connection, I have lodged a written ejahar with Amguri P.S. one week prior to the occurrence. Around 5 a.m. on the day of occurrence I saw that the door of our house was open. When I asked my wife about it, she started quarrelling with me. Going out of the house I saw Pinku Baruah running away. In this connection, I have lodged a written ejahar with Amguri P.S. one week prior to the occurrence. Around 5 a.m. on the day of occurrence I saw that the door of our house was open. When I asked my wife about it, she started quarrelling with me. Going out of the house I saw Pinku Baruah running away. I took a crowbar and was about to go out to assault him but my wife stopped me inside the house. In the scuffle, the crowbar hit on my wife’s head and she sustained injury there. Thereafter, I went to Amguri P.S., with the crowbar in my hand and confessed my guilt and also handed over the crowbar. I confessed before the Magistrate also. I don’t have anything mere to say.” 12. The learned Sessions Judge, after considering all these aspects of the matter, passed the impugned judgment and order on 07.03.2013 holding that the charge under Section 302 of the IPC stood established against the accused and accordingly he was convicted under the said section. The learned court sentenced him to suffer R.I. for life under Section 302 of the IPC and also to pay a fine of Rs. 5,000/- and in default, to suffer R.I. for another 6 months. This judgment and order has been called in question in the present appeal. 13. We have heard Mr. S Borgohain, learned Amicus Curiae and Mr. K. A. Mazumdar, learned Additional Public Prosecutor. We have perused the lower court records. 14. Mr. S Borgohain, learned Amicus Curiae, submitted in all fairness that in view of the depositions of the witnesses and the judicial confession made by the accused, there is no doubt that the accused caused death of his wife inside the house by dealing a single blow of a crowbar. But at the same time, it cannot be lost sight of that the accused did not make any attempt to flee from justice. Immediately after commission of the offence he went to the police station with the crowbar and surrendered. His statement was recorded by police and then he was also produced before the Judicial Magistrate First Class for recording of confessional statement. Immediately after commission of the offence he went to the police station with the crowbar and surrendered. His statement was recorded by police and then he was also produced before the Judicial Magistrate First Class for recording of confessional statement. The accused had himself surrendered before the police station immediately after commission of the offence and at that time he disclosed that he had killed his wife because of her illicit relationship with her brother-inlaw, namely, husband of her younger sister. In course of his statement under Section 313 of the Code of Criminal Procedure, the accused maintained the same stand and said specifically that he found her wife in compromising position with Pinku Baruah, the sister’s husband of the deceased and thereupon he was suddenly provoked and dealt a blow. The learned Amicus Curiae has also drawn attention of the court to the Ext. 5 judicial confession. This confession shows that the accused initially dealt a blow on her leg and waist with the crowbar and then wanted to deal another blow on her arm when she stood up and came forward. As a result, the blow landed on her head and this is how she died. According to the learned Amicus Curiae, the accused had no intention to cause death of the victim. He only wanted to punish her because of her inappropriate relation with her brother-in-law which he did not approve as a husband. It is, therefore, a case of culpable homicide not amounting to murder under Part II of Section 304 of the IPC. 15. Having heard the learned Additional Public Prosecutor vis-a-vis the submissions of the learned Amicus Curiae, we have given our anxious consideration to the materials available on record. Here is a case of exceptional nature where a husband is confronted with an unexpected situation about behaviour of his legally married wife. He discovered that his wife had illicit relationship with Pinku Baruah. They were in compromising position and he lost balance. The illicit relationship of the victim with Pinku Baruah is also stated on oath by the PW 8. PW 8 deposed clearly that Pinku Baruah used to come to their house during absence of his father and even used to stay at night and he being a minor boy of 10/11 years noticed Pinku Baruah sleeping with his mother. The illicit relationship of the victim with Pinku Baruah is also stated on oath by the PW 8. PW 8 deposed clearly that Pinku Baruah used to come to their house during absence of his father and even used to stay at night and he being a minor boy of 10/11 years noticed Pinku Baruah sleeping with his mother. Even PW 3, Bimal Baruah had made a clear mention about such behaviour of the victim in course of his cross examination and so the judicial confession of the accused which is otherwise legally and validly recorded is not only voluntary but also appears to be true in nature. If the judicial confession is accepted in entirety, the evidence of PW 3 and PW 8 give credence to it and it stands materially corroborated. Fact remains that accused caused death of the victim by dealing a blow with crowbar but only on being provoked at her compromising position with Pinku Baruah. Statements at Ext. 5 were given by the accused himself by surrendering to police. He surrendered immediately after the occurrence and did not make any attempt to flee from justice. There is no reason as to why he should not speak the truth under such circumstances. Considering the entirety of circumstances as reflected above, we are of the view that the accused became a victim of circumstances and was under sudden provocation to assault the victim. He stated to have assaulted her at leg and waist first and then aimed to assault her at her arms but as she stood up and came forward, the blow landed upon her head and thus death occurred to her. Even otherwise use of crowbar itself, to some extent, denotes that he did not have intention to kill her. Had he intended to kill her really, he could have done so with a sharp weapon when she was sleeping. We are of the view that the accused having assaulted his wife on her feet and waist first is not guilty of offence under Section 302 of the IPC and rather he is guilty under Section 304 Part II of the IPC. Accordingly, the appeal stands partly allowed. The sentence of life imprisonment is reduced to 5 (five) years Rigorous Imprisonment. However, the amount of fine of Rs. 5,000/- is maintained. The appellant be released from jail on undergoing the jail sentence awarded by us. Accordingly, the appeal stands partly allowed. The sentence of life imprisonment is reduced to 5 (five) years Rigorous Imprisonment. However, the amount of fine of Rs. 5,000/- is maintained. The appellant be released from jail on undergoing the jail sentence awarded by us. 16. Send down the lower court records.