JUDGMENT : B. Panigrahi, J. - The order of conviction and sentence u/s 302 of the Indian Penal Code (in short, 'IPC') dated 8.3.1995 passed by the learned Sessions Judge, Phulbani in Sessions Trial Case No. 5 of 1994 directing the appellant to undergo imprisonment for life has been assailed in this appeal. 2. The brief narration of the facts leading to the present appeal is as follows : The sole appellant, Lesu Pradhan and the deceased, Upuka Pradhan were co-villagers of Dalabadi under Daringibadi Police Station. On the date of occurrence, both of them were working in the field of Satrughna Nayak, P.W. 1 as daily labourers. The appellant had a wound on his leg. The deceased Upuka attributed the wound of the appellant to be Leprosy. There was a quarrel between the two as (hey thought leprosy is a social taboo. The quarrel, however, subsided at the intervention of P.W. 1. At that juncture, Danabuda, the son of the deceased arrived at the place. The appellant and the son of the deceased left the field jointly. On the same day at about 6.00 P.M. Upuka Pradhan went near the house of the appellant and enquired about his son. At this, the appellant being enraged, suddenly dealt an iron rod blow on the head of Upuka, as a result of which he immediately sank down. The brother of the appellant, Ramesh (P.W. 4) and Andeswar (P.W. 3) had seen the incident. The appellant made an attempt to flee away from (he scene of occurrence, but Ramesh could bring him back to his house. The other witness Andeswar went to Kindramal to call Kohina Pradhan, the brother of the deceased. Andeswar also explained about the situation of Kohina. On return, P.W. 3 found that the dead body of Upuka had been shifted to his house. Ramesh informed the brother of the deceased and Andeswar that the appellant shifted the dead body of Upuka, kept it inside his house and proceeded towards Basabadi. On the next morning. FIR was lodged through P.W. 2, on the basis of which investigation started. The police held inquest over the dead body of Upuka Pradhan, sent the same for post-mortem examination to Daringibadi P.H.C., and seized some blood stained earth and sample earth from the frontage of the house of the appellant as also from the house of the deceased. FIR was lodged through P.W. 2, on the basis of which investigation started. The police held inquest over the dead body of Upuka Pradhan, sent the same for post-mortem examination to Daringibadi P.H.C., and seized some blood stained earth and sample earth from the frontage of the house of the appellant as also from the house of the deceased. The wearing clothes of the deceased were seized on production by the police havildar. The wearing apparels of the accused were also seized, besides the iron rod said to have been used as the weapon of offence. The seized articles such as iron rod, blood stained earth and sample earth, wearing apparels for both parties were sent to the Forensic Science Laboratory through the learned S.D.J.M. for chemical examination and on completion of investigation, chargesheet was submitted against the appellant. 3. The plea of the appellant was one of complete denial of the incident. In his statement recorded u/s 313, Cr.P.C., he claimed to have been falsely implicated. 4. P.W. 4, the brother the appellant, is said to be an eye witness. He has stated that the deceased came to the verandah of the appellant shouting that the latter had concealed his son. There ensued a quarrel between them in course of which the appellant dealt a blow by means of an iron rod on the head of the deceased, who received bleeding injury and fell down on the ground. It was suggested to P.W. 4 that the deceased made an attempt to cause injury by the iron rod on the head of the appellant, but such rod befell on his head as a result of which he sustained injury. While the deceased made a second attempt, the appellant slipped away to a side and in the process the deceased got injuries. From the medical report, it however, appears that the deceased sustained injury of the size 3" x 1/2" x 3/4" situated on the frontal part of the frontal bone of the scalp. On dissection, it was found that blood clots had been deposited in the frontal side of the frontal lobe of brain, i.e., intracranial haemorrhage. The cause of death as noted in the post-mortem report was that the death was due to assault by blunt weapon like M.O.1., which caused intracranial haemorrhage leading to shock and cardiac failure. On dissection, it was found that blood clots had been deposited in the frontal side of the frontal lobe of brain, i.e., intracranial haemorrhage. The cause of death as noted in the post-mortem report was that the death was due to assault by blunt weapon like M.O.1., which caused intracranial haemorrhage leading to shock and cardiac failure. The injury inflicted on the deceased was ante mortem in nature and was homicidal. Such injury would cause the death in ordinary course of nature. Therefore, from the evidence of P.W. 4, it has been firmly established that the deceased had met a homicidal death. The cause of injury as opined by P.W. 5, the medical officer, has been substantially corroborated by ocular evidence of P.Ws. 3 and 4. Therefore, the learned trial Judge on the basis of the evidence of P.Ws. 3 and 4 afongwith the medical evidence of P.W. 5 rightly held that the deceased met a homicidal death out of the injuries sustained by him. P.W. 9, one of the seizure witness to the discovery of the iron rod (M.O.I.), has unequivocally proved the seizure of M.O.I, from the 'Dolly' kept inside the house of the appellant, From the evidence of P.W. 3, it is gathered that the appellant after assaulting the deceased was trying to run away by throwing the iron rod. The learned counsel appearing for the appellant has criticized the evidence of the prosecution challenging the manner of seizure said to have been made u/s 27 of the Evidence Act. But we notice that the place of occurrence is hardly few feet away from the house of the appellant. It is true that P.W. 3 who was a witness to the incident, found that the appellant after throwing away the iron rod proceeded towards the jungle. However, the rod was recovered from inside the house of the appellant. How it went inside the house of the appellant he alone can explain. But the fact remains that from the evidence of P.Ws. 9, 10 and 11 it has been established that the iron rod had been seized from the 'Dolly' of the appellant on the basis of discovery statement, It is true that P.W. 10 made a statement at the beginning that at the time of inquest, he saw the iron rod near the place of occurrence. 9, 10 and 11 it has been established that the iron rod had been seized from the 'Dolly' of the appellant on the basis of discovery statement, It is true that P.W. 10 made a statement at the beginning that at the time of inquest, he saw the iron rod near the place of occurrence. But he subsequently corrected himself and stated that the same was recovered from the house of the appellant. The recovery of weapon of offence, M.O.I, is also not very important in view of the fact that defence itself has stated that there was a quarrel between the deceased and the appellant with the help of an iron rod. Therefore, according to us, the recovery of iron rod becomes insignificant while determining the appellant's liability. 5. Now coming to the report of the Serologist, it is found that the wearing apparels of the accused had contained human blood of 'B' origin. The recovery of iungi becomes doubtful as there has been no explanation by the prosecution as to how it came to the hands of P.W. 4. Although it contained human blood of 'B' origin, which is the blood group of the appellant, since its recovery is doubtful, the same cannot be used against the appellant. However, recovery of the iron rod at the instance of the appellant u/s 27 of the Evidence Act has been amply corroborated by the oral evidence of P.Ws. 9 to 11 and there could be slightest doubt about such recovery. The appellant has not been able to explain the presence of human blood of 'B' origin, which tallied with the blood group of the deceased, on the iron rod recovered at his instance. In the above context, we agree with the finding of the learned Sessions Judge that the appellant had assaulted the deceased by means of M.O. I and caused the injury on his person. 6. Next, it is to be considered whether the act of the appellant could come within the purview of culpable homicide not amounting to murder, punishable u/s 304, either Part I or Part II, IPC. In this case, learned counsel appearing for the appellant has taken us through the evidence of P.Ws. 3 and 4. 6. Next, it is to be considered whether the act of the appellant could come within the purview of culpable homicide not amounting to murder, punishable u/s 304, either Part I or Part II, IPC. In this case, learned counsel appearing for the appellant has taken us through the evidence of P.Ws. 3 and 4. Both of them have consistently stated that preceding the incident, there was a quarrel in course of which the appellant being enraged and excited out of sudden impulse, inflicted a single blow by the iron rod on the head of the deceased. He had no pre-plan or pre-meditation to cause the murder of Upuka to view of such evidence, we are of the considered opinion that the offence committed by the appellant comes u/s 304, Part-Il, IPC. 7. In the result, the appeal is allowed in part. The conviction of the appellant u/s 302, IPC is altered to that u/s 304, Part-ll, IPC. As regards sentence, it is seen that the appellant has been in jail custody since long. Therefore, in order to meet ends of justice, we sentence him to the period of imprisonment already undergone. He be released from jail custody and set at liberty forthwith. P.K. Misra, J. 8. l agree. Final Result : Partly Allowed