JUDGMENT : B. Panigrahi, J. - The appellant, who was the accused in Sessions Trial No. 127 of 1987, has challenged the validity, legality and propriety of the JUDGMENT dated 23.2.1988 passed by the learned Sessions Judge, Sundargarh convicting him u/s 302 of the Indian Penal code, in short, 'IPC' and sentencing him to undergo imprisonment for life. 2. Bereft of unnecessary details, the prosecution story is as follows : On 30.4.1987 one Kastu Penthei (P.W. 3), cousin brother of the accused Malia Penthei while consuming Baula fruits inside Baidihi Jungle, found one bear lying dead. On the following morning, i.e., on 1.5.1987, the appellant and P.W. 3 alongwith two others, namely, Jaya and Panu brought the dead bear from the jungle and butchered it under a mango tree of village Khajurdihi between 12.00 noon and 2.00 P.M. The female folk of the village while passing through that way strongly objected to their act, as it was emitting obnoxious smell. Jaya and Panu left the place on account of the protest raised by the female members whereas the appellant and P.W. 3 paying no heed to the protest, continued to cut the head of the dead bear with an axe of Dadu. At this juncture, the deceased Ganeswar Lohar was passing through that way on a bicycle which dashed against P.W. 3 (Kastu) as a result of which the latter fell down on the ground. The appellant took exception to such incident. There was exchange of words between the appellant and the deceased and in course of such altercation the appellant is said to have dealt a blow by the sharp edge of the axe (M.O.I) on the back side of the deceased. He immediately fell down then the there from the bicycle and the appellant gave a second blow with the axe on the neck of the deceased. By receiving such injuries the deceased immediately collapsed. 3. Appellant, Malia Penthei appeared before the Koida Police Station at 8.00 P.M. on the date of occurrence and reported that he had killed Ganeswar Lohar by means of an axe. The report was treated as F.I.R. (Ext. 9) by the I.O. (P.W. 7) who took up investigation. P.W. 7, arrested the appellant, visited the spot and sent the dead body for postmortem examination. On such examination, it was found that the death must be the outcome of assault by an axe (M.O.I). The report was treated as F.I.R. (Ext. 9) by the I.O. (P.W. 7) who took up investigation. P.W. 7, arrested the appellant, visited the spot and sent the dead body for postmortem examination. On such examination, it was found that the death must be the outcome of assault by an axe (M.O.I). It was further found that the deceased had sustained oblique cut injury over the neck slightly on the left side of the trachea below the thyroid cartilage. M.O.I, was sent to the Doctor (P.W. 2) (or his opinion whether this injury could be possible by such axe, who rendered his opinion in the affirmative. The wearing apparels of the accused and the deceased, blood stained axe and other materials were sent to the Regional Forensic Science Laboratory, Sambalpur which were found to have contained human blood of Group 'B', which is the blood group of the deceased. On completion of investigation, chargesheet was laid before the Court. Later on the case was committed to the Court of Session and the learned Sessions Judge on an elaborate resume of the evidence passed the order of conviction and sentence against the appellant. 4. The plea of the appellant was one of denial of the occurrence. 5. P.W. 3 is the cousin of the appellant, who has proved that during altercation between P.W. 3 and the deceased, the appellant interfered and dealt two axe blows on the head and neck of the deceased by M.O.I, as a result of which he shrieked immediately and finally collapsed. The prosecution has also refied on the evidence of eye witnesses apart from medical evidence and also the presence of blood contained on the garment of the accused. Keeping this in view, we have to find out how far the prosecution has been able to bring home the charges. 6. Presence of the appellant at the spot at the time of incident has not been seriously challenged by the learned counsel appearing for the appellant. Rather it has been consistently staled by the witnesses namely P.Ws. 1, 3, 4 and 5 that the appellant was present alongwith P.W. 3. From the statement of P.W. 3 it is further established that the appellant was huried with threats. P.Ws. 1 and 3 were undisputedly present at the spot. Admittedly, P.W. 3 is the first cousin of the appellant. 1, 3, 4 and 5 that the appellant was present alongwith P.W. 3. From the statement of P.W. 3 it is further established that the appellant was huried with threats. P.Ws. 1 and 3 were undisputedly present at the spot. Admittedly, P.W. 3 is the first cousin of the appellant. From the narration of facts and on the basis of evidence of P.W. 3, it cannot for a moment be comprehended that he falsely implicated the appellant for causing the homicidal death of Ganeswar Lohar. From the testimony of P.W. 3, it is further transpired that the appellant had a quarrel with the deceased Ganeswar and in course of the quarrel, the former inflicted two blows with the axe (M.O.I.), as a result of which Ganeswar fell down on the ground. The evidence of P.W. 3 is corroborated by P.W. 1 and it is firmly established that the appellant assaulted the deceased by means of the axe, M.O.I. The injuries were inflicted on The head as well as neck, as a result of which Ganeswar died instantaneously. After causing the injuries, the appellant is stated to have thrown the axe at the spot. M.O.I. was carried for cutting the dead bear. P.Ws. 4 and 5 are not eye witnesses to the occurrence. But P.W. 5 the widow of the deceased, has stated about the implication of the appellant. For a moment it cannot be imagined that P.W. 5 would falsely implicate the appellant in a heinous crime of murder of her husband. On a conjoint reading of evidence of P.Ws. 1, 3 and 5, an indelible impression has been created that the appellant alone was responsible for causing the death of Ganeswar. 7. Learned counsel appearing for the appellant has further invited our attention to the fact that both parties namely, the appellant, the deceased and P.Ws. 1, 3 and 5, belong to one caste. From the facts so proved, it is further emerged that P.W. 3 and the appellant consumed liquor and were engaged in cutting the head of the dead bear. They took exception to the protest raised by the deceased who picked up quarrel with P.W. 3 and also with the appellant, who flared up during such altercation and dealt the blows with the axe which he was holding then. Therefore, he did not intend to cause death of Ganeswar. They took exception to the protest raised by the deceased who picked up quarrel with P.W. 3 and also with the appellant, who flared up during such altercation and dealt the blows with the axe which he was holding then. Therefore, he did not intend to cause death of Ganeswar. In this regard learned counsel appearing for the appellant relied upon a judgment of this Court in the case of Madhu Rana V. State of Orissa, (2001) 21 OCR 228, wherein it has been held that persons belonging to the tribes are easily inflammable by nature and that no abstract standard of reasonableness can be laid down regarding the conduct of a man in as much as the action of an individual depends upon certain circumstances. The Court also relied upon the judgment of the Supreme Court in the case of K.M. Nanavati Vs. State of Maharashtra, wherein it has been held as follows : "Is there any standard of a reasonable man for the application of the doctrine of 'Grave and sudden' provocation ? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc., in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civiiizalion. It is neither possible nor desirable to lay down any standard with precision, it is for the Court to decide in each case, having regard to the relevant circumstances.' 8. On the rationale of the decision in K. M. Nanavati (supra) and that in Madangi Samuru V. State, 1985 (4) OLR 271, the Court held that a person belonging to aboriginal tribe is easily inflammable in nature. It further held that sudden provocation depends upon certain circumstances, customs, manner, way of life, traditional values etc. Accordingly, it altered the conviction of the appellant from one u/s 302, IPC to that u/s 304, Part-l, IPC and reduced the sentence to the period of imprisonment already underdone. 9. Mr. Mohanty, learned Additional Government Advocate appearing for the State while retributing the submission of the learned counsel for the appellant has contended that in this case there are no extenuating circumstances to treat the offence punishable u/s 304, either Part-l or Part-ll. 9. Mr. Mohanty, learned Additional Government Advocate appearing for the State while retributing the submission of the learned counsel for the appellant has contended that in this case there are no extenuating circumstances to treat the offence punishable u/s 304, either Part-l or Part-ll. IPC, in as much as there was sufficient time for the appellant to cool down his passion. Therefore, his action does not justify to after the conviction and reduce the sentence. 10. We find from the evidence of P.W. 3 that the deceased had a quarrel with him. When the appellant intercepted the deceased started quarreling with him leaving P.W. 3. Both the parties belong to aboriginal caste. Their character is inflammable in nature and they get suddenly provoked on a trivial issue. Now, it is to be tested whether a reasonable man belonging to the same class of the society, placed in a situation in which the appellant was placed, would be so provoked as to lose his self control. In course of altercation, the appellant is said to have inflicted free blows on the deceased due to sudden and grave provocation being incensed. The fatal blow was under the influence of passion arising out of that provocation. In the above background, in our considered opinion the appellant inflicted blows out of sudden provocation and the offence committed by him comes under Exception-1 of Section 304, IPC. Accordingly, we convict him u/s 304, Part-l, IPC and sentence him to undergo R.I. for 10 years. 11. In the result, the conviction of the appellant is altered from one u/s 302, IPC to that u/s 304, Part-l, IPC and he is sentenced to undergo R.I. for 10 years. Since it reveals from the records that he has already undergone imprisonment for more than the aforesaid period, he be released from jail custody and set at liberty forthwith, if his detention is not required in connection with any other case. The Criminal Appeal is dismissed subject to the modification of conviction and sentences, as slated above. Final Result : Dismissed