JUDGMENT : K.P. Mohapatra, J. - The Appellant has challenged the judgment passed by the learned Sessions Judge, Koraput, Jeypore convicting him u/s 302, I.P.C. for causing murder of Buda Muduli (hereinafter referred to as the deceased) during the night of 11th and 12th November, 1984 and sentencing him to undergo imprisonment for life. 2. Prosecution case in brief is that the deceased belonging to village Ondrayal had gone to village Khedaput to witness a Jatra. The Appellant who belongs to village Bhaliapadar stabbed him on the chest by means of a knife locally known as 'Kati', as a result of which, he sustained injuries and died in stantneously. After the assault, the Appellant left the place. The place of assault being near the house of P.Ws. 2 and 3 husband and wife respectively, they saw the occurrence and as a matter of fact the dead body of the deceased was found on the back side of their house. Information was lodged on 14-11-1984 by P.W. 1 with the Officer-in-charge of Machhakund Police Station (Ext. 9), after which investigation commenced and in course of it, the dead body was despatched for post mortem examination. After the Appellant was arrested it was found that he had sustained some injuries and so he was also sent to the Medical Officer for examination. While in police custody the Appellant gave information leading to the discovery of the knife (M. O. I.) The wearing appareis of the deceased, the Appellant, the knife and the nail scrappings of the Appellant were sent for chemical and serological examination. After completion of investigation charge sheet was submitted. 3. The plea of the Appellant during trial was that the deceased had assaulted him and so he left the place. He denied to have assaulted the deceased and committed his murder. 4. The learned Sessions Judge on consideration of the prosecution evidence found him guilty of the offence of murder and convicted and sentenced him as already stated above. 5. P.W. 4 was the Medical Officer of Nandapur P.H.C. He conducted the post mortem examination of the dead body of the deceased on 14-11-1984 and found the following injuries: (i) A punctured wound measuring 1 x 1/4 x 4 on the left side of the chest at the fourth inter-costal space two inches medial to the left nipple. 5. P.W. 4 was the Medical Officer of Nandapur P.H.C. He conducted the post mortem examination of the dead body of the deceased on 14-11-1984 and found the following injuries: (i) A punctured wound measuring 1 x 1/4 x 4 on the left side of the chest at the fourth inter-costal space two inches medial to the left nipple. The lower end of the wound had a slurp angle and the upper end had ragged margins. (ii) An incised wound measuring 1/4" x 1/4" x 1/8" on the left side of the neck. On dissection, it was found that the pericardium was punctured. The right ventricle of heart was perforated as well as both anterior and posterior walls. The pleura was punctured. According to his opinion, the injuries were ante mortem in nature and were sufficient in ordinary course to cause death which was due to shock and haemorrhage. M.O. I could cause the injuries vide post mortem report, Ext. 1 and further report, Ext. 2. In view of the evidence of the Medical Officer, there is no room to doubt that the death of the deceased was homicidal. 6. Mr. S.D. Das, learned Counsel appearing for the Appellant urged that if the evidence of the prosecution witnesses is believed then there is scope to hold that the Appellant had committed an offence u/s 304, Part II I.P.C. In the light of the submission made it is necessary to examine the prosecution evidence. 7. P.W. 7 stated that in the month of Diwali on a Sunday a Jatra was being performed in village Khadaput. He went to see the performance. The Appellant, the deceased and himself took some liquor. He went away to the house of his mother with her, where is the Appellant and the deceased came together to Tala street. In cross-examination he admitted that the deceased was his brother-in-law and sold liquor at the Jatra place. The evidence of this witness shows that the deceased was last seen together with the Appellant. The evidence of this witness has not been challenged in cross-examination. 8. P.W. 2 is the husband of P.W. 3. They belonged to village Khadaput. Their evidence in Court was identical. Both of them stated that on a Sunday night, they were sleeping on the verandah of their house near the fire. The Appellant and the deceased came near the house and, picked up quarrel. 8. P.W. 2 is the husband of P.W. 3. They belonged to village Khadaput. Their evidence in Court was identical. Both of them stated that on a Sunday night, they were sleeping on the verandah of their house near the fire. The Appellant and the deceased came near the house and, picked up quarrel. Both of them woke up from sleep hearing the noise. They asked the Appellant and the deceased to leave the place. The Appellant stabbed on the chest of the deceased by means of a knife at a distance of six cubits from the verandah. After the assault he left the place with the knife which they identified to be M.O. I. The deceased proceeded towards the back yard of the house, fell down on the ground and died. On the following morning they informed the incident to P.W. 6 and out of fear of Bondas, a ferocious tribe (the deceased was a Bonda), they concealed inside the jungle. They returned to their house on Wednesday after hearing about the arrival of the police. Their evidence has not at all been shaken in cross-examination. P.W. 3 stated in cross-examination that, the deceased first assaulted the Appellant and then the latter stabbed the former by means of M.O.I. 9. P.W. 6, the brother-in-law of the deceased stated that on a Monday P. W 2 informed him that the Appellant stabbed the deceased by means of a knife and the latter was lying dead in the back yard. He went to the spot and found the deceased lying dead with an injury on his chest. 10. P.W. 5 the Medical Officer of lamtaput P.H.C. stated that on police requisition he had examined the Appellant and submitted his report, Ext. 5. The report shows that the Appellant was examined on 15-11-1984 and two lacerated injuries of simple nature which could have been caused by hard and blunt weapon, one on the scapula and another on the back side of the left arm were found on his body. 11. P.W. 8 stated that the knife (M.O.I.) was found concealed inside a heap of straw near the house of the Appellant which was seized by the Investigating Officer (P.W 10) on information being given by the Appellant while in police custody. 12. 11. P.W. 8 stated that the knife (M.O.I.) was found concealed inside a heap of straw near the house of the Appellant which was seized by the Investigating Officer (P.W 10) on information being given by the Appellant while in police custody. 12. From the reports of the Chemical Examiner and Serologist it was found that the knife (Banda Kati) and the nail scrappings of the Appellant were found to have contained human blood. 13. Both the Appellant and the deceased were illiterate sheduled tribe people living in the hilly tract of the Koraput distrcict, The deceased belonged to Bonda tribe known to be easily irritable and ferocious. The deceased was selling liquor near the Jatra place, at night. Both the Appellant and the deceased were intoxicated. There was quarrel between them and in course of the quarrel the deceased first assaulted the Appellant who retaliated by giving a stab blow by means of the knife (M.O.I) which was discovered at the instance of the Appellant while in police custody. The knife and the nail scrappings of the Appellant were stained with human blood. From the above evidence, it is quite clear that the Appellant had no motive or intention to commit murder of the deceased. On account of quarrel and assault and without realising the consequence, the Appellant stabbed the knife on the chest of the deceased. Therefore, in our opinion, the case falls within the ambit of exception 4 of Section 300, I.P.C. so that in stated of an offence u/s 302, I.P.C. the Appellant is liable for an offence u/s 304, Part II, I.P.C. In the facts and circumstances of the case, rigoround imprisonment for a period of seven years shall meet the ends of justice. 14. In the result, the appeal is allowed in part. The conviction of the Appellant is altered from Section 302, IPC to Section 304, Part II, I.P.C. In stead of life imprisonment, he is awarded sentence of rigorous imprisonment for seven years. J.M. Mahapatra, J. I agree. Appeal allowed in part. Final Result : Allowed