JUDGMENT : Barman, A.C.J. 1. The accused Appellant Pitei Beja was convicted on a charge of murder of his paternal aunt Tabha Bewa, widow of one Jogia, Beja, with a tangia and sentenced to rigorous imprisonment for life. Along with the accused Appellant. Pitei Beja his father Indra Beja was also convicted on a charge of assault or criminal force to his nephew P.W. 1 Basanta and sentenced to a fine of Rs. 10/, in default, to rigorous imprisonment for seven days. The father, accused Indra Beja did not appeal from the said order of conviction and sentence. The motive for the alleged murder is said to be some dispute for the last 4 to 5 years between the accused persons and the deceased?s son Basanta P.W. 1, who are said to be members of the same family, over a piece of homestead which the accused persons are said to hive forcibly encroached upon. The defence is that the accused Appellant had killed the deceased under a grave and sudden provocation. 2. In view of the defence that, while admitting the killing of the deceased-the accused Appellant did so under a grave and sudden provocation it is not necessary to state in details the facts leading to the killing of the deceased. In the confessional statement the accused said that while the deceased's son P.W. 1 Basanta. was cutting the accused's wall, his father Indra asked him not to cut it; thereupon P.W. 1 assaulted the accused's father Indra with a tangia; in a fit of anger the accused Pitei ran towards P.W. 1 and raised the tangia to give a blow to him but the people dragged P.W. 1 away; then the accused's tangia hit P.W. 1's mother the deceased and she died. The accused Appellant admitted his guilt. There were as many as five eye-witnesses p.ws.1 to 5 to the incident who an deposed as to how the deceased was killed by the accused Appellant. 3. The question is (sic) the defence plea of sudden and grave provocation available to the accused Appellant? It appears that both the accused persons had suffered injuries on their person. The evidence of the doctor P.W. 7 is that he examined the accused Indra Beja on June 4, 1963 and found the following injuries on his person 1. An incised injury 1" ? 3/4" ? It appears that both the accused persons had suffered injuries on their person. The evidence of the doctor P.W. 7 is that he examined the accused Indra Beja on June 4, 1963 and found the following injuries on his person 1. An incised injury 1" ? 3/4" ? skin-deep longitudinally placed on the back side of the left forearm. It was simple in nature and could be caused by sharp cutting instrument. 2. One incised wound 2?" ? 1/16" ? skin-deep longitudinally placed on the right side of the chest a little away from the mid-line. It was simple in nature and could be caused by a sharp cutting instrument. 3. One lacerated wound ?" ? ?" on the right side of the upper lip below the nose. It was simple in nature and could be caused by coming in contact with a hard and blunt substance. The doctor also found that the age of the injuries appeared to him to be about 48 hours before his examination which he held at 11 a.m. in the morning. This is quite consistent with the prosecution case that the incident in which there were assaults on both sides, took place on June 2, 1963. The doctor had also examined on the same date (June 4, 1963) the accused Appellant Pitei Beja and found the following injuries One incised wound transversely situated ?" ? 1/16" ? skin-deep on dorsum of the right index finger. It was simple in nature and could be caused by a light sharp cutting instrument. The doctor also opined that the injury was about 48 hours old by the time of his examination. The doctor had also examined P.W. 1 Basanta and found two incised wounds both said to have been caused by a sharp cutting instrument. It is quite apparent from the evidence of the doctor that the deceased's son P.W. 1 Basanta had inflicted several injuries on the body of the accused persons. 4. The prosecution failed to explain these injuries on the accused persons. There was admittedly a quarrel between the parties and there was a large number of injuries on both sides. In course of the said quarrel, the deceased suffered one injury as found by the doctor, namely one incised wound 1??? ? 1" ? 4. The prosecution failed to explain these injuries on the accused persons. There was admittedly a quarrel between the parties and there was a large number of injuries on both sides. In course of the said quarrel, the deceased suffered one injury as found by the doctor, namely one incised wound 1??? ? 1" ? 3" deep on the right side of the upper part of the chest and shoulder longitudinally which was grievous in nature and could be caused by a sharp cutting weapon. The doctor's opinion is that the injury can be caused by the tangia M.O. III. This is consistent with defence version of the case. 5. In our opinion this is clearly a case which falls u/s 300, Exception 1 which provides as follows: Exception 1 Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes death of any other person by mistake or accident. From the evidence of the eye-witnesses read with the evidence of the doctor who found injuries on both the accused persons as well as on the deceased's son P.W. 1, it is clear that, the defence case of grave and sudden provocation under Exception 1 may be true. In our opinion the act of the accused Appellant falls under Exception 1 to Section 300, Indian Penal Code. The blow on the chest with a tangia which penetrated 1? ? 1" ? 3" deep on the right side of the chest and shoulder of the deceased was with the intention of causing death or of causing such bodily injury as is likely to cause death. 6. We accordingly allow the appeal to the extent that the conviction of the accused Appellant Pitei Baja u/s 302, Indian Penal Code and the sentence of rigorous imprisonment for life awarded to him is set aside but the accused Appellant will be convicted of having committed the offence u/s 304, Part I of the Indian Penal Code and will be sentenced to ten years rigorous imprisonment. Misra, J. 7. I agree. Final Result : Allowed