JUDGMENT : Barman, J. - This is an appeal from an order of conviction and sentence passed by the learned Sessions Judge, Cuttack Dhenkanal, convicting the accused Appellant u/s 302 Indian Penal Code and sentencing him to rigorous imprisonment for life, in the circumstances hereinafter stated. 2. The prosecution case, shortly stated, was this: On November 26, 1960 in the afternoon, fourteen persons of village Burty including Keshab P.W. 1, Kadava P.W. 5 and Laba P.W. 8 and the accused Kusha had gone to a plot of land close to the forest, which they had obtained for cultivation on bhag basis from the Sarpanch) of Jagannathpur, for the purpose of erecting a fence on the said land; while thus engaged in putting up the fence, there was a quarrel between the accused Kusha and Kadava (P.W. 5) during which the deceased?s father Keshab (P.W. 1) intervened. The accused Kusha started abusing Keshab also and thereafter the deceased Kanhei, who at the time was grazing some buffaloes in the field came running and caught hold of the accused by the throat; thereupon the persons Present at the spot intervened and separated the deceased Kanhei from the accused and thereafter all dispersed. All this happened shortly before sunset. This was the first phase of the incident. 3. The next phase of the incident-which ultimately resulted in the death of the deceased Kanhei was later on the same day, after all returned home from the field. Keshab was engaged in tying his buffaloes in his cattle-shed. At that time the wives of Khab and the accused Kusha started quarreling with each other and during the said quarrel Keshab is stated to have made some remarks about the quarrel some attitude of the accused and his elder brother Laba. On hearing the remarks made by Keshab, the accused Kusha?s brother Laba took umbrage and came running towards Keshab shouting "Salaku Marikiri Pakeideb". When Laba was coming towards Keshab, then Keshab?s son the deceased Kanhei who was standing near him also went running towards Laba, prepared to meet the challenge: Laba and the deceased Kanhei stood close to each other and began to utter threatening words by why of challenge, but there was no mutual assault between them. When Laba was coming towards Keshab, then Keshab?s son the deceased Kanhei who was standing near him also went running towards Laba, prepared to meet the challenge: Laba and the deceased Kanhei stood close to each other and began to utter threatening words by why of challenge, but there was no mutual assault between them. At that stage, however, the accused Kusha suddenly came ruling from his house from behind Laba with a bow and arrows and shot an arrow at Kanhei from a close range. The arrow pierced the chest of Kanhei on the left side and a portion of the iron blade came out through the right side of the body. The deceased Kanhei immediately fell down and died at the spot. The accused Kusha ran away with his bow towards the forest; his brother Laba also ran away; the deceased?s father Keshab shouted to his wife Sukurta (P.W.2) that their son had fallen down and his wife came immediately to the spot but by that time Kanhei was already dead. 4. Immediately thereafter, the local Choukidar of the village was informed and the following morning on November 21, 1960 the First Information Report was lodged by the deceased?s father Keshab (P.W. 1) at the Beat House at Jagganthpur which was about a mile from the place of occurrence. Then in the usual course, information was sent to the local police station at Purunakote through the Choukidar and thereafter the police took up the investigation. When the investigating police officer arrived at the spot, he found the dead body of the deceased Kanhei at the very spot where the in accident took place, namely at Gotha (meant for tying buffaloes) in between the houses of Laba (the accused Kusha?s brother) and Keshab, father of the deceased; the arrow M.O.I was found sticking inside the chest of the dead body, a portion of the iron blade projecting on the right side of the chest the ground underneath the dead body was stained with blood. At 1 p.m. on November 21, 1960 the accused Kusha was arrested and examined by the police. The same day the other prosecution witnesses were also examined. At 1 p.m. on November 21, 1960 the accused Kusha was arrested and examined by the police. The same day the other prosecution witnesses were also examined. In course of investigation it transpired that the house of the accused was burnt for which another F.I.R. was also drawn up by the police and there was also a separate investigation but the police submitted Final Report as no clue is stated to have been found. 5. In due course, after investigation, the accused kusha Dehuri was charged, committed and sent up for trial before the learned Sessions Judge. The prosecution called as many as 15 witnesses including P.W. 1 Keshab Dehuri, the deceased?s father, who was an eye-witness to the incident and P.W. 2 the mother of the deceased who immediately reached the spot where the deceased son was lying dead. The other material witnesses in case were the doctor P.W. 3, the investigating officer P.W. 15 and the Magistrate P.W. 10 before whom the accused is stated to have made a confession which, however, was subsequently retracted. P.W. 4 and P.W. 6 are also material witnesses before whom the accused is stated to have made confession. 6. It was submitted, on behalf of the defence, that since the evidence shows that the house of the accused had caught fire and was burnt it should be held that the accused had, in the circumstances, a right of private defence. But there is no force in the alleged plea of private defence, because there is no evidence to show that Keshab or his son the deceased Kanhei had set fire to the house, and that apart it is clear from the evidence that the house caught fire shortly after the incident and not before it. Indeed, the codes ional statement of the accused shows that the hose was set fire to after the shooting of the arrow and therefore there can be no question of the exercise of any right of private defence, as rightly found by the learned Sessions Judge. 7. The defence also relied on certain alleged discrepancies in the evidence of the prosecution witnesses but it appears from a scrutiny of the evidence that none of the alleged discrepancies are in respect of any material particulars. 7. The defence also relied on certain alleged discrepancies in the evidence of the prosecution witnesses but it appears from a scrutiny of the evidence that none of the alleged discrepancies are in respect of any material particulars. For instance, as regards place of occurrence according to the evidence of p.w.1 in cross-examination the arrow was shot when his son the deceased was under the Khajuri tree in his Bari, whereas the witness P.W. 1 before the committing Magistrate appears to have said that when he was tying the buffaloes, the brother of the accused Laba abused them at which the deceased retreated, at this Laba ran up to a custard apple tree standing near his house and so also the deceased ran some distance towards him and there they challenged each other to assault. Indeed on a plain reading of the evidence as a whole-by reference to the spot map (ext. 7), where the situation of the two trees is indicated, it is clear that the evidence is consistent and there is no discrepancy, and indeed nothing to discredit the evidence of the prosecution witnesses. 8. On confession before the Magistrate, the defence point is that is was neither voluntary nor true. It is said that the accused was detained by the police for more than 24 hours. Furthermore, the accused in his 342 Code of Criminal Procedure statement said that he never made a statement voluntarily before the Magistrate; that he made some statement before him out of fear as he had been assaulted by the police. It was further commented that the Magistrate had not given the accused sufficient assurance as required by law. These submissions made on behalf of the accused Appellant are without any force. It is clear that the accused was given sufficient time for reflection before he was produced before the Magistrate for recording his confession; sufficient warning had been given by the Magistrate and also enough opportunity had been given to the accused for cool reflection after remanding him to jail custody. It is quite evident that the Magistrate satisfied himself as to the voluntary character of the confession; the accused had been put a specific question to which the accused had answered that he was making the answer voluntarily. That apart, the fact-that the accused confessed also before P.W. 4 and P.W. 6, proves the prosecution case. 9. It is quite evident that the Magistrate satisfied himself as to the voluntary character of the confession; the accused had been put a specific question to which the accused had answered that he was making the answer voluntarily. That apart, the fact-that the accused confessed also before P.W. 4 and P.W. 6, proves the prosecution case. 9. The plea that the confession was retracted is hardly of any help to the accused. The defence plea is that the accused was assaulted by the police and retracted the confession he had made before the Magistrate out of fear. Thus the array of common from defences was complete because here is one accused who makes a confession and then retracts it on the hackneyed ground that he was assaulted by the police. It this context the the Calcutta High Court quoted the observation of Sir George Rankin, C.J., that "no criminal defence in this country is-complete without a retracted confession" Purnananda Dasgupta and Ors. v. Emperor. 10. The eye-witness is the father of the deceased himself P.W. 1 who narrated exactly what happened during the incident. P.W. 2, the mother of the deceased, arrived at the spot immediately she heard the shout of P.W. 1 her husband she fully corroborates the evidence of her husband P.W. 1. 11. The medical evidence also fully supports the prosecution case. P.W. 3 the Assistant Surgeon, Sambalpur, who held the post-mortem examination opined that the wound caused by the arrow was ante mortem; that the entire length of the wound was 13" as noted by him in the post-mortem report; that assuming the arrow was shot from a bow, the assailant must have been standing on the left side of the victim and not directly in front of him; that the victim must have fallen down at the particular spot where the injury was caused as the heart was pierced through. The doctor?s evidence supports the prosecution version of the case, as deposed to by several witnesses. The medical evidence tallies with the evidence of the eye-witness P.W. 1 that the throw pierced the chest of the left side and a portion of the iron blade came out through the right side of the body; that immediately afterwards, my son fell down staggering, shouting" Marigali Go Ba". 12. The medical evidence tallies with the evidence of the eye-witness P.W. 1 that the throw pierced the chest of the left side and a portion of the iron blade came out through the right side of the body; that immediately afterwards, my son fell down staggering, shouting" Marigali Go Ba". 12. In view of the direct positive evidence of the eyewitness and having regard to the confession made by the accused himself which, in our opinion, is voluntary and true, we are satisfied that the prosecution established beyond any doubt that it was the accused who had shot the arrow which pierced through the deceased and killed him outright on the spot, in the circumstances hereinbefore stated. 13. There is, however, one aspect as also noticed by the learned Sessions Judge in his judgment, namely that the accused got some provocation from the deceased in consequence of the catching hold of his throat by the deceased and further that he acted without premeditation in a moment of excitement and in a fit of rage at the time when a quarrel was going on between the wives and another quarrel between the deceased and his father on the one hand and the accused?s brother Laba on the other as herein before fully narrated. In these circumstances, we are of opinion that in view of the quarrel and exchange of hot words at the moment, the privation must have been grave and sudden, and it was in sudden excitement at the moment that the accused had shot the arrow. The evidence of such provocation is also clear from the evidence of the main eye-witness P.W. 1, father of the deceased. The relevant portion of his evidence is quoted as follows: While referring to the quarrelsome attitude of Laba and the accused, I used the expression? Under-mata? to indicate quarrel due to excitement. On hearing this expression from me, Laba got annoyed and came running towards me shouting "Salaku Marikiri Pakeidebi. When Laba was coming towards us my son also went running towards him and challenged him by saying ?Kemiti Maribu Marta? x x x After coming close to each other, Laba and my son Kanhei began to utter threatening words by way of challenge. At that stage accused Kusha came running from his house from behind Laba with bow and arrows and shot an arrow at my son Kanhei. x x x After coming close to each other, Laba and my son Kanhei began to utter threatening words by way of challenge. At that stage accused Kusha came running from his house from behind Laba with bow and arrows and shot an arrow at my son Kanhei. It is thus clear that there was sudden and grave provocation. We therefore hold that the accused?s act of shooting the deceased was an act done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death, and accordingly it comes under Part II of Section 304 Indian Penal Code. 14. In this view of the case, we would accordingly allow the appeal so far as to alter the conviction to one u/s 304, Part 2, Indian Penal Code and to reduce the sentence to rigorous imprisonment for seven years. Das, J. 15. I agree.