JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.2000/- with default stipulation. 2. Anjuma Khatun, aged about 20 years, was the victim. She was also the wife of appellant. 3. According to the prosecution case, appellant married to Anjuma 3-4 years prior to the date of incident, whereafter he lived in the house of his father-in-law as “Ghar Jowai” with Anjuma. But his mother-in-law lived separately in a different village as she had re-married to another person and this she did because appellant’s father-in-law was a drunkard. The mother-in-law, however, continued to maintain good relation with Anjuma and even helped her during need. Anjuma had a son out of her wedlock with the appellant. She also gave birth to a female child at her mother’s house and returned to her father only a week before the incident. On 10.7.2011, around 5 p.m., the appellant assaulted Anjuma on the right side of her head near the ear with a wooden stick. Anjuma was immediately carried to Nagaon Civil Hospital for treatment. Sister of Anjuma is married to Babul Islam (PW-1). He was, however, telephonically informed about the incident. Babul rushed to the Hospital to see Anjuma, but soon after he reached, she died. Babul, then, made ejahar exhibit 1 against the appellant on 11.7.2010 at Nagaon Sadar Police Station. On receiving the ejahar, Investigating Officer – Sumeswar Bora (PW-7) visited the place of occurrence and arrested the appellant. He also seized one branch of tree about 2½” long from the house of appellant, by which, he had assaulted Anjuma. 4. Dr. Mridul Kumar Nath (PW-5) conducted the post mortem examination on the dead body. He found lacerated injury over left parito temporal region and lacerated injury over left side of scalp and temporal region. The doctor also found fracture of left parietal bone, fracture of left temporal bone and fracture of mandible on the right side. The doctor in his post mortem examination report exhibit-3, opined that Anjuma died due to head injury which was ante mortem in nature. In the post mortem examination report, the doctor also gave a finding that Anjuma had no sign of pregnancy. 5. During trial, the appellant pleaded false implication. The doctor in his post mortem examination report exhibit-3, opined that Anjuma died due to head injury which was ante mortem in nature. In the post mortem examination report, the doctor also gave a finding that Anjuma had no sign of pregnancy. 5. During trial, the appellant pleaded false implication. He while being examined as an accused under Section 313 of the Code of Criminal Procedure explained that Anjuma was pregnant and when he returned after work, he saw injury on her head and on his asking, she disclosed that she was unwell and hence suddenly fell on the ground due to which she sustained injuries. The trial court disbelieved the defence of appellant and relying upon the evidence adduced by the prosecution particularly of eye witness Md. Khairul Islam (PW-2) convicted and sentenced him as aforesaid. 6. Md. Khairul Islam was next door neighbour of appellant and Anjuma. He has testified that on hearing commotion, he went to the house of Anjuma and saw the appellant assaulting her on the right side of her head near the ear with a wooden stick. Nothing has been brought out in the cross examination of this witness to discredit him. In fact, his evidence stands fully corroborated by the post mortem examination report exhibit 3 prepared by Dr. Mridul Kumar Nath. Besides this, the post mortem examination report also belies the defense of appellant that Anjuma was having pregnancy and due to weakness she fell down and head injury was caused to her. The post mortem examination report clearly reveals that Anjuma had no sign of pregnancy. Also no suggestion was put to Dr. Mridul Kumar Nath whether the head injury sustained by her could be caused due to fall. 7. Having regard to the evidence available on record, the learned counsel for the appellant has not assailed the prosecution story which is well founded and fully proved. We accordingly confirm the finding of the Trial Court that appellant alone was the perpetrator of the crime. 8. The learned counsel for appellant has, however, argued that even accepting the prosecution version in totality, it cannot be said that appellant had the intention to murder his wife Anjuma and as such the offence will not be under Section 302 of the Indian Penal Code, but under Part-I of Section 304 of the Indian Penal Code. We find sufficient force in this submission. We find sufficient force in this submission. In the case at hand, there is nothing on record to suggest that relations between the appellant and Anjuma were not cordial. Anjuma had returned just only a week before to her father’s house after delivering a female child under the care of her mother who lived separately. It appears that over some trivial issue, a quarrel took place and in heat of passion, the appellant dealt a blow or two with a wooden stick on the head of Anjuma. 9. Having regard to the facts and circumstances of the case, we are of the considered view that the act committed by the appellant would fall under Section 304 Part I of the Indian Penal Code and not under Section 302 of the Indian Penal Code. 10. Consequently, we set aside the conviction of the appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment imposed to him thereunder and instead, convict him under Section 304 Part I of the Indian Penal Code and impose a sentence of 9 years rigorous imprisonment. The sentence of fine is however affirmed. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us. 11. With the above modification, the appeal is partly allowed.