BEHERA, J. ( 1 ) THE appellant stands convicted under section 302 of the Indian Penal Code (for short, the Code) for having committed the murder of Bisu Jani (hereinafter described as the deceased) on the 30th June, 1982 at Malte Padar Danger in the district of Koraput by means of a stick (M 0 III) and a piece of stone a piece of which has been identified in the court as M 0. IV and has been sentenced to undergo imprisonment for life. The prosecution had not established any motive for the commission of the offence and this is also the finding of the trial court. The prosecution had depended on the evidence of P. Ws. 2 to 5, who had been examined as witnesses to the occurrence and that of P. W. 9 who had spoken about an extra judicial confession said to have been made by the appellant that he had killed the deceased and the recoveries of some incriminating articles. ( 2 ) APPEARING on behalf of the appellant, Mr. Ramdas has contended that the findings of the trial court are unfounded and that if this Court accepts the evidence of P. Ws. 2 to 5 and holds that the appellant had killed he deceased, the offence would be one of culpable homicide not amounting to murder punishable under section 304 Part II of the Code. The learned Standing Counsel bas supported the order of conviction. ( 3 ) IT is not disputed at the Bar that the de-ceased had died a homicidal death as a result of the injuries on his person. ( 4 ) P. WS. 2 to 5 had given a clear and consistent version that during the scuffle between the appellant and the deceased, the deceased fell down and the appellant picked up a stick (M. O. III) lying on the ground, dealt some blows on the deceased and thereafter picked up a piece of stone (M. O. IV) and threw it at the deceased. Nothing substantial has been brought out in the cross- examination of these witnesses to discredit their testimony. There has been no undue delay in the examination of these principal witnesses in the course of investigation. Their evidence finds assurance from the medical evidence. Besides, M. O. IV had been seized by the Investigating Officer on the spot and on chemical and serological test, it contained human blood. There has been no undue delay in the examination of these principal witnesses in the course of investigation. Their evidence finds assurance from the medical evidence. Besides, M. O. IV had been seized by the Investigating Officer on the spot and on chemical and serological test, it contained human blood. In addition, a stick (M. O. III) had been seized on being produced by the wife of the appellant. These circumstances would corroborate the evidence of P. Ws. 2 to 5 which itself had intrinsic worth. ( 5 ) AS in his statement under section 161 of the Code of Criminal Procedure, P. W. 9 had not stated about the extra judicial confession and such an important omission would amount to a contradiction within the meaning of the Explanation to section 162 of that Code, his evidence in this regard cannot be relied on. ( 6 ) WE would uphold the finding of the trial court that the appellant had dealt blows on the deceased by means of a stick and then threw a piece of stone at the deceased which had resulted in the death of the latter. ( 7 ) THE prosecution has failed to establish any motive for the commission of the offence. There had been a scuffle between the appellant find the deceased. The appellant did sustain some injuries on his person as would be seen from the evidence of the doctor (P. W. 7) The appellant bad not gone to the place armed. On the spur of the moment and after a sudden quarrel and scuffle, he had picked up a stick, the diametre of which was only 1/2 and dealt some blows on the person of the deceased and then picked up a piece of stone, but did not hit hard on the face or head of the deceased by it, but threw it at him. The doctor (P. W. 6) had not, in terms, testified that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause his death although he had stated that the injuries could cause instantaneous death. The doctor (P. W. 6) had not, in terms, testified that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause his death although he had stated that the injuries could cause instantaneous death. Regard being had to the manner of assault and the circumstances in which the incident occurred, it would not be reasonable to say that the appellant had the intention of causing the death of the deceased or that he had the intention of causing such bodily injuries as were likely to cause his death. But the evidence and circumstances narrated above would indicate that the appellant had the knowledge that by his acts, he was likely to cause the death of the deceased. The offence would, therefore, be one of culpable homicide not amounting to murder punishable under section 304 Part II of the Code. ( 8 ) IN the result, the appeal is allowed in part. The order of conviction passed against the appellant under section 302 of the Indian Penal Code and the sentence passed against him there under are set aside and in lieu thereof, the appellant is convicted under section 304 Part II of Indian Penal Code and sentenced to undergo imprisonment for a period of six years which would meet the ends of justice. Appeal allowed. .