JUDGMENT : V. Gopalaswamy, J. - This appeal is preferred against the judgment dated 13.7.1983, passed by the learned Sessions Judge, Dhenkanal, in S.T. No. 10 D of 1983. convicting the Appellant u/s 302, I.P.C. and sentencing him thereunder, to undergo imprisonment for life, for having committed the murder of his wife. 2. The gist of the prosecution case is, that on 15.1.1982 at about 2 P.M. Appellant Sambara Munda assaulted his wife Nilamani Munda (the deceased) in his house, at village Garhapalasuni (within the Parjang Police Station) with the lathi M.O.I, as a result of which she sustained severe injuries and ultimately she succumed to her injuries while being carried to mahabirod Hospital. The Grama Rakhi of the village (P.W. 1) lodged the F.I.R. (Ext. 1) in the case at mahabirod Out Post and the police, after due investigation, submitted the charge-sheet against the Appellant u/s 302, IPC. 3. The defence plea is one of denial and the father of the accused was examined as D.W. 1 by the defence. 4. The prosecution has examined, in all, 11 witnesses to prove its case. Admittedly, there is no eye witness to the occurrence. P.W.1 is the informant in the case. P.Ws. 3, 4 and 5 are the co-villagers of the Appellant, who claim to have gone to the spot of occurrence immediately after the occurrence was over. P.Ws. 9, 10 and 11 are the police officers. P.W. 3 is the doctor, who conducted the post-mortem examination over the dead-body of the deceased. P.Ws. 6 and 7 are examined to prove the extra judicial confession said to have been made by the Appellant. 5. As earlier stated the case against the Appellant is proved by circumstantial evidence. The prosecution mainly relies on the extra judicial confession said to have been made by the Appellant soon after the occurrence. According to the prosecution, the Appellant had assaulted his wife (the deceased) in hi s house and at that time no one had witnessed it. The claim of P.W. 6 that the Appellant was related to him as his nephew is not disputed. According to the prosecution, the Appellant had assaulted his wife (the deceased) in hi s house and at that time no one had witnessed it. The claim of P.W. 6 that the Appellant was related to him as his nephew is not disputed. His evidence shows that on receiving information about the occurrence from his son (P.W. 4) he went to the house of the Appellant, when he (P.W. 6) found the deceased lying on the verandah of the residential house of the Appellant with bleeding injuries on her head and the Appellant had him (P.W. 6) that he had committed a mistake in assaulting the deceased with a lathi The above evidence of P.W. 6 on the aspect that the Appellant had confessed before him about his assaulting his wife with a lathi was not shaken in cross-examination and so the same can be safely relied on and more so, as he (P.W. 6) is admittedly related to the Appellant and is in no way interested in falsely impleading him in the case. 6. The evidence of P.Ws. 2 and 4 shows that on the relevant date at about 1 to 2.30 P.m., on hearing cries and shouts coming from the house of the Appellant, they went there and found that the wife of the Appellant was lying on the verandah of the Appellant's house and there was bleeding from her head and the Appellant was seen standing at a distance of about 4 to 5 cubits from her holding a lathi, The version of the P.Ws. 2 and 4, that as they rushed to the house of the Appellant soon after the occurrence, the Appellant was seen standing with a lathi near the deceased who was lying on the verandah with bleeding injuries, can be safely relied on as even D.W. 1, the father of the Appellant, deposes to the same effect. The very fact that soon after the occurrence the Appellant holding a lathi was found near his wife, who was lying with bleeding injuries, by itself, goes a long way to confirm the truth of the extra-judicial confession made by the Appellant that he assaulted his wife with a lathi which was elicited by the prosecution through P.W. 6. 7. The conduct of the Appellant soonafter there the occurrence is also quite revealing. 7. The conduct of the Appellant soonafter there the occurrence is also quite revealing. If some body else other than the Appellant had assaulted the deceased then it is normally expected of him to have complained about it when P.W. 6 and others went to the spot of occurrence but he did not do so. 8. P.W. 3 is the doctor, who conducted the post-mortem examination of the deceased and he opined that the injuries found on the deceased were possible by a lathi. So the medical evidence in case also is in accordance with the statement made by the Appellant before P.W. 6 that he assaulted his wife with a lathi. 9. The evidence of P.W. 4 reveals that the Appellant was holding the lathi M.O.I. when he was standing near his wife lying injured on the verandah. There is reliable evidence to show that the M.O.I was seized by the I.O. from the verandah of the Appellant. There is acceptable evidence to show that M.O.III was the sail which the deceased was wearing and M.O.II was the Dhoti which the Appellant was wearing at the time of occurrence and that both were stained with blood when I.O. seized them. From the reports of the chemical examiner and serologist (Exts 12 and 13) it is seen that the stains of blood which were found on the dhoti of the Appellant were of the same blood group B as the stains of the blood found on the Saree of the deceased and this is a strong incriminating circumstance against the Appellant. 10. Hence on a careful consideration of the circumstantial evidence placed on record against the Appellant, as discussed above it can be safely held that the Appellant had assaulted the deceased with a lathi which resulted in bleeding injuries on her person and ultimately she died on account of such injuries. 11. P.W. 3, the doctor, who conducted the post-mortem examination found the following external injuries: (1) Lacerated injury on left temporal region of scalp 3 c.m. length 1 c.m. breadth extending deep into and causing injury to membranes and brain matters. (2) Lacerated injury on scalp right side in the temporal region 15 c.m. lenier, extending from right tragus of ear upto vertex. (2) Lacerated injury on scalp right side in the temporal region 15 c.m. lenier, extending from right tragus of ear upto vertex. The skull bone corresponding to the lacerated injury is fractured and it was a comminuted type of fracture an brain and meninges corresponding to the length of injury was injured. (3) Tear of left pinna starting from helix up to the root. (4) Laceration of forehead 3 cm. length and 3 cm, breadth above the left eye. The doctor opined that all the said injuries were ante-mortem in nature and possible by a lathi similar to M.O.I and they are sufficient in the ordinary course of nature to cause the death of the deceased. Thus from the medical evidence it is seen that the deceased died on account of the injuries sustained by her at the hands of the Appellant. 12. The extra judicial confession, proved by P.W. 6 which is strongly relied on by the prosecution to prove the guilt of the Appellant, discloses that while admitting that he had assaulted his wife with a lathi, the Appellant had also stated that he had committed a mistake in so assaulting her. The evidence of P.W. 6 shows that when he saw the Appellant, he was weeping saying that his wife died. P.W. 7 also stated in his cross-examination that the Appellant was weeping that his wife was dead. The prosecution evidence shows that the Appellant made no attempt to escape from the scene of the occurrence though there was nobody to prevent him from running away from the spot of occurrence if he wanted to do so. The evidence of P.W. 6. shows that the deceased was lying unconscious when he found her From the prosecution evidence it is seen that while the deceased was being carried to the Hospital she died on the way. P.W. 5 stated that the mind of the accused was a little out of order. There is no prosecution evidence to show that there was any strained relationship between the accused and deceased prior to the date of occurrence. The prosecution does not come out with any motive as to why at all the Appellant had intended to cause the death of the deceased. There is no prosecution evidence to show that there was any strained relationship between the accused and deceased prior to the date of occurrence. The prosecution does not come out with any motive as to why at all the Appellant had intended to cause the death of the deceased. If the prosecution evidence is read, in the light of the various circumstances enumerated above it is clear that there is nothing in the evidence to suggest that the Appellant had, while assaulting the deceased, either intended to cause her death or intended to cause any such injury as was sufficient in ordinary course of nature to cause her death or intended to cause any injury which was likely to cause her death. But then when the Appellant had assaulted the deceased, in the manner he did, it may be safely held that the Appellant had the knowledge that such assault was likely to cause her death. Hence we find that the charge u/s 302, I.P.C. against the Appellant cannot stand but the offence u/s 304 Part II, I.P.C. is brought to him. 13. In the result, while setting aside the order of conviction and sentence passed against the Appellant u/s 302, I.P.C. we hold that the Appellant is guilty u/s 304 Part II, I.P.C. and convict him thereunder and consequently the sentence of imprisonment is reduced to the period of imprisonment' already undergone by him. Accordingly, the appeal is only partly allowed and the Appellant is directed to be released forthwith. Final Result : Allowed