S. K. MOHANTY, J. ( 1 ) THE appeal is directed against the judgment of conviction of the appellant for the offence under section 302 of the Indian Penal Code and sentence of rigorous imprisonment for life passed thereunder. ( 2 ) CHANDRA (P. W. 5) and Indra (deceased) are two brothers. Nisha (P. W. 8) is the wife and Sajani (P. W. 6), Kaincha (P. W. 7) and Rajani (P. W. 9) are the daughters of Chandra. Appellant Puma is the husband of Rajani. ( 3 ) PROSECUTION story in brief is that marriage between the appellant and Rajani was solemnised sometime in 1987. As the appellant tortured Rajani, after about one year of the marriage, with pregnancy of 3 months, she came away to the house of her father Chandra (informant) and did not agree to go back. Rajani delivered a daughter in her fatherts house. After birth of the-daughter, the appellant came to Rajani 3 to 4 times and returned after quarrelling; Two days prior to 27. 2. 1989, the appellant's mother with her niece in-law came and wanted to take Rajani and her daughter. When they were told that Rajani was not willing to go back, they wanted to take her daughter. Chandra told them to take her daughter after she started taking rice. Thereafter they returned. Then on 27. 2. 1989 at about 7 p. m. , the appellant came to the house of Chadra and lifted his daughter from the lap of Rajani with a view to take her. Seeing this, Indra (deceased) protested on the ground that the child was small and it was night time, and snatched the child from the appellant. The appellant got annoyed, brought out the knife which he was concealing and after piercing the same on the chest of Indra; ran away with the same. Indra sustained heavy bleeding injury and died instantaneously. The appellant took the plea of denial. ( 4 ) RELYING on the direct evidence of the three sisters P. Ws. 6, 7 and 9, the medical evidence of the Doctor. P. W. 11 who held post-mortem examination over the dead body of Indra and the fact of recovery of the Gupti (M. O. II) by the Investigating Officer on the information supplied by the appellant while in custody, the learned Additional Sessions Judge has passed the impugned judgment of conviction and sentence. P. W. 11 who held post-mortem examination over the dead body of Indra and the fact of recovery of the Gupti (M. O. II) by the Investigating Officer on the information supplied by the appellant while in custody, the learned Additional Sessions Judge has passed the impugned judgment of conviction and sentence. The Doctor, P. W. 11 on post-mortem examination found a punctured wound of the size 1/2 X leading inside the chest of left side below medial point of the clavicle collar bone. The Doctor has clearly opined that the injuries were severe and dangerous. On dissection he found the arch of the soirts damaged, the upper lobs of the left lung damaged and the left side of the heart punctured leading to emptiness of the heart and vessle. According to the doctor, the cause of death was due to excessive bleeding by the damage of heart and big artery leading to shock. In his opinion, the injury was sufficient in ordinary course of nature to cause death. The Doctor denied the suggestion that the injury is possible by falling on a peg for tying cattle. He however admitted that if the peg was sharp and pointed like M. O. II and a man falls on the same, the injury was possible. As would be discussed hereunder, there is clear and reliable evidence that the appellant pierced M. O. II and caused the injury and there is nothing on record to suggest Indra falling on a peg and sustaining the injury. In this background, the learned counsel for the appellant rightly did not challenge the finding of the court below that death of Indra was homicidal in nature. ( 5 ) DIRECT evidence of P. Ws. 6, 7 and 9 reveal that on the date of occurrence at about 7 p. m. , the appellant approached from backside of the house and went to the room where P. W. 9 Rajani was lying with her daughter with a Dibiri burning there. The appellant wanted Rajani to go with him in that night. Rajani refused as it was night. Then the appellant snatched the child from her and the child cried. Hearing the cry, Indra came to that room and gave out that the child was too young to be taken and after she was able to take rice, the appellant would take her. Rajani refused as it was night. Then the appellant snatched the child from her and the child cried. Hearing the cry, Indra came to that room and gave out that the child was too young to be taken and after she was able to take rice, the appellant would take her. So saying Indra forcibly brought the child from the appellant and handed over to Rajani. At this the appellant became enraged and stabbed Indra on his chest by means of a Gupti, which he had concealed in his armpit. ( 6 ) IT reveals from the evidence of the Investigating Officer P. W. 12 that after visiting the spot, he went to village Manapur in search of the appellant, found him on the outer verandah of the house of one Kelu Dehuri and arrested him. It further reveals that after arrest, the appellant stated that he had concealed the Gupti in the thatched roof and brought out the Gupti (M. O. II) which was seized under the seizure list Ext. 9. The Investigating Officer further seized a bloodstained Lungi (M. O. IV) and a shawl (M. O. III) from the possession of the appellant. The La. obtained nail scrappings of the appellant with the help of the doctor P. W. 1, and collected some blood-stained earth, and scrapping from the wooden door near the spot. Ultimately, the aforesaid items were sent for chemical examination and human blood of B group was found in the nail scrappings, bloodstained earth scrapping from the door, the lungi M. O. IV and the shawl M. O. III. Human blood was also detected on the Gupti, but the blood group could not be determined due to deterioration. In other words, the Gupti seized on the information supplied by the appellant while in custody, was found stained with human blood. His nail scrappings, lungi and chadar as well as the blood-stained earth and door scrappings collected from the spot were found stained with human blood of B group. Such evidence from the side of the prosecution corroborates the prosecution story of assault by means of the Gupti by the appellant on Indra. ( 7 ) CONSIDERING the above evidence, Mr. Mohapatra for the appellant did not assail the finding that the injury in question was caused by the appellant by means of Gupti and the same caused the death of Indra. ( 7 ) CONSIDERING the above evidence, Mr. Mohapatra for the appellant did not assail the finding that the injury in question was caused by the appellant by means of Gupti and the same caused the death of Indra. He, however, argued that the facts and evidence appearing in the case only established the offence of culpable homicide and not murder. ( 8 ) NOW the question arises, whether the appellant is liable for the offence under section 302, I. P. C. or for the offence under section 304, I. P. C. and in latter case, which part of the section. It reveals from the evidence on record that the appellant is of Sabara caste, belonging to aboriginal tribe. Within one year of his marriage, he had difference with his wife Rajani and the latter came away to her fathers place with pregnancy of three months. Thus, for about a year prior to the case incident, the appellant was deprived of mental life. After Rajani came away, the appellant came to her 3 to 4 times to take her but returned disappointed. The evidence further reveals that Rajani always expressed his unwillingness to go back to her husbands house. In such facts, the mental background of appellant is to be kept in view while judging the incident. On the date of occurrence also, the appellant meeting Rajani wanted her to go with him in that night, but she refused. Then the appellant took the child and held her in his hands. Indra, the deceased, then came to the room and telling him to take the child after she, took rice, forcibly took the child from the appellant and handed over to Rajani. The appellant must have come to the house of Rajani in an irritated mood, because the latter was not returning to him instead of repeated attempts. When Rajani refused to go, the appellant wanted to take his child obviously to force Rajani thereby to follow them. But he was prevented from doing so by Indra who was separate from Chandra, the father of Rajani, and was living in a separate house: In this background, the appellant stabbed Indra by means of a Gupti which came to fall on her chest and thereafter the appellant left the place with the Gupti. But he was prevented from doing so by Indra who was separate from Chandra, the father of Rajani, and was living in a separate house: In this background, the appellant stabbed Indra by means of a Gupti which came to fall on her chest and thereafter the appellant left the place with the Gupti. ( 9 ) THE aforesaid facts are to be kept in view for determining the offence committed by the appellant. Whether a solitary blow on a vital part resulting in death would constitute the offence of murder or culpable homicide not amounting to murder would depend on facts and circumstances of each case. In the case at hand the appellant had no quarrel with the deceased. There is nothing to show that he entertained malice towards the. deceased. The incident occurred on the spur of the moment without any premeditation. Even the meeting between the appellant and the deceased was accidental because normally the deceased was not supposed to be in the house of Chandra at the time of occurrence. The appellant was disappointed in his previous attempts to take back his wife. On the night of occurrence when Rajani refused to go, the appellant took hold of the child obviously to coerce Rajani to go with him. At this juncture Indra appeared at the scene and forcibly took away the child and handed over to Rajani. The mental background which the appellant had further worsened by the said act of Indra which must have severely hurt his feelings and provoked him. At that time the appellant gave the solitary blow by the Gupti which landed on the chest of the deceased. He did not attempt any second blow in the feeble Dibiri light then burning. In such circumstances the appellant cannot be imputed with the intention to cause death or intention to cause the particular injury which ultimately proved fatal. He is, however, to be imputed with the knowledge that the injury caused by him was likely to cause death. Consequently the appellant is found guilty for the offence under section 304, Part II of the Indian Penal Code and convicted thereunder. He is, however, to be imputed with the knowledge that the injury caused by him was likely to cause death. Consequently the appellant is found guilty for the offence under section 304, Part II of the Indian Penal Code and convicted thereunder. Our conclusion as aforesaid finds support from the decision of the apex Court in Jawaharlal v. State of Punjab, and Tholan v. State of Tamil Nadu, where in some what similar background conviction for the offence under section 302, I. P. C. was reduced to one under section. 304, Part II, I. P. C. and sentence of imprisonment for 5 years was passed. ( 10 ) IN the result, the conviction of the appellant for the offence under section 302, I. P. C. is set aside and instead he is convicted for the offence under section 304, Part II, I. P. C. and sentenced to rigorous imprisonment for five years. The appeal is accordingly allowed in part. Appeal allowed partly.