JUDGMENT B. PANIGRAHI, J. — Conviction and sentence passed by the learned Second Addl. Sessions Judge, Berhampur dated 30.11.94 in Sessions Case No. 24/94 (S.C. No. 205/94 GDC) directing the appellant to undergo imprisonment for life has been assailed in this appeal. 2. Prosecution case in short as described in the trial Court’s judgment is as follows. Deceased was the adoptive mother of the appellant. She adopted the appellant and got him married with her daughter’s daugh¬ter (P.W.2) four years preceding to the date of occurrence. After his marriage the appellant and his wife were living in the house of the deceased. The appellant and P.W.2 were blessed with a son who was about one year at the time of occurrence. On 15.4.94 the parents of P.W.2 had gone to the house of deceased to attend the first birthday anniversary of their grand-son. Deceased asked the appellant to present his in-law with new clothes on that occa¬sion. But unfortunately he turned it down the therefore there was a quarrel between the two. On the following day, i.e. on the day of birth anniversary, in the morning at about 6 a.m. when the appellant lighted a lamp the deceased objected to it. Again there was a heated discussion and in course of such quarrel, the appel¬lant lost his self-control and “picked up a kati and assaulted the deceased on the head and shoulder”, as a result of which she instantaneously died. Thereafter he chased to assault his wife (P.W.2) who saved herself by fleeing away from the spot. The appellant then unsuccessfully tried to commit suicide with the very same weapon. 3. The informant who was Gramarakhi of the village reached near the spot and gathered information that the appellant had done away with the deceased. He saw the deceased lying in a pool of blood on the outer verandah of her house. The informant also found P.W.2 sitting beside the dead body and crying. P.W.2 on being asked, she disclosed that her husband (appellant) had killed the deceased by assault with a kati. The informant also saw the blood-stained kati lying beside the dead body. Thereafter he rushed to the police station and lodged the F.I.R. 4. On receipt of the information the police took up inves¬tigation. The Investigating Officer held inquest over the dead body. The informant also saw the blood-stained kati lying beside the dead body. Thereafter he rushed to the police station and lodged the F.I.R. 4. On receipt of the information the police took up inves¬tigation. The Investigating Officer held inquest over the dead body. sent it for post mortem examination, seized the kati which was lying there, arrested the accused and also seized the wearing apparels and sent them for chemical examination and found that the wearing apparels of both the persons were stained with human blood of the same group. On completion of investigation he had placed charge-sheet against the appellant. 5. Plea of the defence is one of complete denial and false implication.It was however suggested to the P.W.2 that the de¬ceased had thrown M.O.I. at the appellant which hit the latter causing injuries on him. 6. Nine witnesses had been examined in order to prove the prosecution story. P.W.1 is the Gramarakhi, who had lodged F.I.R. at the police station. P.W.2 is the wife of the appellant who claimed to be the eye-witness of the occurrence. P.Ws. 3 and 4 are post-occurrence witnesses and also witnesses to the seizure. P.W.5 is the doctor who examined the appellant as well as P.W.2 on police requisition. P.W.9 is the Professor and Head of the Department of Forensic Medicines and Toxicology in the Medical College, Berhampur who conducted the post mortem examination on the dead body and P.Ws.10 and 11 are Investigating Officers. Learned Additional Sessions Judge on appraisal of evidence was however inclined to convict the appellant under Sec. 302, I.P.C. and sentenced him accordingly. 7. Shri Mohanty, learned counsel for the appellant has submitted that in this case only eye-witness available is P.W.2 who herself admitted that in a fit of anger the appellant dealt one or two blows on the deceased. The appellant had no premedita¬tion nor any intention to kill the deceased. In this case, we find that there is not dispute as regards deceased met a homici¬dal death out of injuries which could have been possible by M.O. I. (kati) and it was seized from the place of occurrence. We have also further noticed that on examination by chemical analyst blood group of the deceased exactly tallied with the blood stain contained on the clothes of the appellant. Therefore the involvement of the appellant can hardly be disputed. We have also further noticed that on examination by chemical analyst blood group of the deceased exactly tallied with the blood stain contained on the clothes of the appellant. Therefore the involvement of the appellant can hardly be disputed. The question that has to be answered is whether in a fit of anger the appel¬lant had inflicted such injuries, as a result of which victim died. From the evidence it is clear that there was a quarrel between the deceased and the appellant in the preceding night over giving presentation of new clothes to the parents in-law. The appellant was not willing to give them clothes, whereas the adoptive mother insisted him to give such clothes. On the follow¬ing morning, i.e. on the birth day of his son when he wanted to light lamp on such auspicious occasion, there was a sudden quar¬rel between the appellant and his mother-in-law, as a reason whereof he picked up a kati and suddenly inflicted blows on head and shoulder. Therefore there was no premeditation nor any inten¬tion to kill the victim. It was all of a sudden actuated by impulse he inflicted blows which resulted in her death. The learned Additional Sessions Judge while disagreeing with the cases cited before him, held that the weapon of offence was used in that case a lathi, whereas in this case ‘kati’ was used as a weapon of offence. We hardly find any difference between the two lethal weapons. 8. Question as to whether the accused had any intention to kill the victim or not shall be gathered from the surrounding circumstances. In the instant case, we have noticed that there was no quarrel between them prior to this incident, but suddenly quarrel ensued only on account of giving new clothe presentation to the parents-in-law of the appellant. Therefore, in our consid¬ered view it is a fit case which can come within the purview of Section 304, Part-II of the I.P.C. as he had no intention to kill the deceased but assaulted her at the spur of the moment. 9. Accordingly, we set aside the conviction and sentence under Sec. 302, I.P.C. and instead convict the appellant under Sec. 304, Part-II, I.P.C. and sentence him to undergo imprisonment for a period of seven years. We are informed that the appellant is on bail. The bail be immediately cancelled and the appellant be taken into custody. 9. Accordingly, we set aside the conviction and sentence under Sec. 302, I.P.C. and instead convict the appellant under Sec. 304, Part-II, I.P.C. and sentence him to undergo imprisonment for a period of seven years. We are informed that the appellant is on bail. The bail be immediately cancelled and the appellant be taken into custody. The appeal is allowed in the manner indicated above. L. MOHAPATRA, J. I agree. Appeal allowed as indicated.