Crl.A. 208/2004 BEFORE HON’BLE MR. JUSTICE B D AGARWAL This appeal is directed against the Judgment and Order dated 15.05.2004, passed by the learned Additional Sessions Judge, Dibrugarh, in sessions Case No . 50 of 200, whereby, the appellant has been convicted under Section 304 Part - II of the Indian Penal Code (hereinafter, referred to as ’IPC’, for short) and s entenced to undergo RI for 10 (ten) years with fine of Rs. 1,000/-, in default, further RI for 1 (one) month. 2. Heard Sri P K Borah, learned counsel for the appellant and Sri K A Mazumdar, learned Additional Public Prosecutor for the State of Assam. I have also perused the impugned Judgment and the evidence on record. 3. During the arguments, the learned counsel for the appellant did not challenge the conviction of the appellant under Section 304 Part - II IPC. H owever, it was pleaded that having regard to the fact that the offence was commi tted under provocation and the nature of injuries sustained by the deceased, the sentence should be reduced. 4. Admittedly, the prosecution witnesses have stated that the decea sed was given fist and kick blows and no weapon was used in the assault. On the other hand, PW-6 (hostile witness) has stated that while the accused was giving fist and kick blows the deceased fell down in a drain. In my considered opinion, the positive evidence coming from the mouth of an independent witness cannot be ignored or taken lightly just because he has been declared hostile by the prose cution. Besides this, the medical findings also do not rule out the fact that th e deceased must have received lacerated and contusion injuries on the upper part of the body on his fall on hard substance. 5. Having regard to all these aspects of the case, the sentence of the appellant is reduced to the period already undergone. It may be mentioned he rein, that the accused has already undergone custodial detention of nearly 6 (si x) years 10 (ten) months. 6. In the result, the appeal stands dismissed. However, the sentenc e is reduced as indicated earlier. The Registry is directed to issue the release order accordingly.