JUDGMENT : P.K. Patra, J. - This is an appeal against the judgment dated 24.6.1994 passed by Shri M. C. Rath, Additional Sessions Judge, Jeypore in Sessions Case No. 98 of 1992 (S.C. No. 241 of 1992) convicting the appellant (hereinafter referred to as 'the accused') u/s 302 of the Indian Penal Code (hereinafter referred to as 'IPC') for alleged commission of murder of one Dhanu Bhotra on 12.6.1992 in village Haldiguda under Dabugaon P.S. in Koraput district, and sentencing him to undergo rigorous imprisonment for life. 2. The facts leading to the prosecution case are as follows : Deceased Dhanu Bhotra had married the sister of the accused. After the death of his sister, the accused reached the house of the deceased in village Haldiguda at about 8 p.m. on 12.6.1992 while the deceased was in the house and was igniting firewood. The accused demanded return of the ornaments and other articles given to his sister at the time of marriage and the deceased replied that since none of his (accused) family members attended the obsequies of his wife, he would return the ornaments and other articles after completing the obsequies of his wife. After so replying when the deceased was blowing the fire, the accused dealt a blow by means of an axe on the right shoulder of the deceased and ran away from the house with the axe. The deceased raised hulla after sustaining bleeding injury. Many of the villagers gathered in his house. On 13.6.1992 at 11 a.m. the deceased went to Dabugaon P.S. and lodged a written report before the O.I.C. (P.W. 7) who registered the case u/s 324 IPC and took up investigation. During investigation P.W. 7 examined the informant, sent him to Dabugaon P.H.C. for medical examination and examined witnesses. The informant was sent to Koraput Hospital for further treatment being referred to by the medical officer of Dabugaon P.H.C. P.W. 7 visited the spot and prepared the spot map. On 14.6.1992 at 7 p.m. P.W. 7 received message from the O.I.C. of Koraput Town P.S. that the injured succumbed to the injuries at the Koraput Hospital. So on 15.6.1992 at 8.30 p.m. P.W. 7 held inquest over the deadbody of the deceased and sent the deadbody for post-mortem examination. Thus the case turned to one u/s 302 IPC. On 14.6.1992 at 7 p.m. P.W. 7 received message from the O.I.C. of Koraput Town P.S. that the injured succumbed to the injuries at the Koraput Hospital. So on 15.6.1992 at 8.30 p.m. P.W. 7 held inquest over the deadbody of the deceased and sent the deadbody for post-mortem examination. Thus the case turned to one u/s 302 IPC. After the post-mortem examination, the wearing apparels of the deceased were seized by P.W. 7. On 16.6.1992 the accused was arrested in his village Sindhikaguda. While in police custody the accused fed the I.O. to recovery of the weapon of offence, i.e. axe (M.O. 1) from the house which was seized. M.O. t was sent to the medical officer, Dabugaon P.H.C. for hts examination and opinion as to whether the injuries sustained by the deceased were possible by the same. The accused was forwarded to court in custody on 17.6.1992. On 31.7.1992 P.W. 7 handed over charge of investigation of the case to his successor, P.W. 2, who completed the investigation and submitted chargesheet u/s 302 IPC against the accused who stood his trial. The accused pleaded not guilty to the charge and his plea was one of complete denial. 3. Prosecution examined nine witnesses in support of its case and the defence examined none. Relying on the medical evidence and ocular testimony of the prosecution witnesses, the learned Addl. Sessions Judge held the accused guilty u/s 302 IPC, convicted him thereunder and sentenced him as stated earlier. 4. Smt. Das, learned counsel for the accused and Shri Acharya, learned Addl. Govt. Advocate for the State, were heard at length. 5. While Smt. Das strenuously urged for setting aside the impugned judgment contending that the same is not legally sustainable in view of improper appreciation of evidence on record and errors of law, Shri Acharya supported the same as legally sustainable. The rival contentions require careful consideration. 6. The medical officer (P.W. 1) who conducted the post-mortem examination on the deadbody of the deceased on 15.6.1992 and submitted the post-mortem examination report (Ext. 1) found the following injuries : (1) Swelling on the left side of face; and (2) Cut wound with sides abraised, of the size 4" x 1" x chest cavity - near right shoulder at upper border of the right scapula. 1) found the following injuries : (1) Swelling on the left side of face; and (2) Cut wound with sides abraised, of the size 4" x 1" x chest cavity - near right shoulder at upper border of the right scapula. On dissection it was found that external injury No. (2) was continuous with injury to corresponding pleura and upper lobe of right lung. The right lung was smaller in size (shrunken). There was half litre of blood in the chest cavity of right side. The tissues surrounding the external injury No. 2 showed effusion of blood which could not be washed away with water. P.W. 1 has opined that the above injuries, both external and internal, were ante-mortem in nature and the death was homicidal. The death was caused due to injury to lung leading to haemothorax and shock and was within twenty four hours of the post-mortem examination. The injuries could cause death in ordinary course of nature and could have been caused by the axe (M.O. I). Thus, as per the medical evidence on record, death of the deceased was homicidal. 7. The medical officer of Dabugaon P.H.C. (P.W. 8) examined the deceased on 13.6.1992 at 11 a.m. and submitted the injury report Ext. 6. He found that the injured had sustained an incised wound of the size 4" x 2 1/2" x 3 1/2" on his right shoulder and right lung. The upper lobe of the right side of the lungs was cut and air was coming out. The injury was grievous in nature and might have been caused by sharp cutting weapon. The same was within twenty four hours of the time of his examination. He examined the axe (M.O.I) on the requisition of the I.O. (Ext. 12) and opined that the injury could have been caused by the said weapon, as per Ext. 12/1. 8. P.W. 3 has stated that he rushed to the house of the deceased hearing his hulla and found that the deceased had sustained a bleeding injury on his right shoulder. On being asked, the deceased told him that his brother-in-law (accused) assaulted him with an axe for not returning the gold ornaments of his sister. P.W. 4 is the wife of Satalu Bhotra (brother of the deceased). On being asked, the deceased told him that his brother-in-law (accused) assaulted him with an axe for not returning the gold ornaments of his sister. P.W. 4 is the wife of Satalu Bhotra (brother of the deceased). She has stated that the deceased had married Dhanmati, sister of the accused and Dhanmati had died one month prior to the occurrence. The deceased and P.W. 5 were residing in separate houses adjacent to each other. She has stated that in the night of occurrence when she was in her house with the daughter of the deceased, she heard the accused shouting 'MARI DELI' and hearing that she came out of her house and saw the deceased lying in front of the courtyard with severe bleeding injury on his shoulder. The deceased told that the accused assaulted him by means of an axe and fled away as he did not return the ornaments of his deceased wife. P.W. 5 is a brother of the deceased who has corroborated the statement of P.W. 4. He has also stated that the deceased had sustained bleeding injury on his shoulder and he came out of his house and fell down in front of the courtyard and told that accused assaulted him by means of an axe as he did not return the gold ornaments of his deceased wife. On the next morning the deceased was removed to Dabugaon P.S. where the deceased lodged written report and from Dabugaon P.H.C. the deceased was referred to Koraput Hospital where he succumbed to the injuries on the following day. 9. Thus, P.Ws. 3, 4 and 5 have corroborated each other about the statement of the deceased implicating the accused. Nothing has been elicited from their mouth so as to discredit them and to discard their statements from consideration. Though they were related to the deceased, they cannot be disbelieved as interested or partisan witnesses in view of the fact that they were the persons present at their houses at the time of occurrence in the evening and that they immediately came out of their houses hearing the hulla raised by the deceased. 10. P.W. 6 is a witness to seizure of the axe (M.O.I) from the house of the accused, but denied his knowledge. 10. P.W. 6 is a witness to seizure of the axe (M.O.I) from the house of the accused, but denied his knowledge. In his statement in cross-examination by the prosecution he has slated that while in police custody the accused gave recovery of the axe (M.O.I) from his house which was seized by the l.O. under the seizure list (Ext. 3). P.W. 9 has stated to have written the FIR (Ext. 4/2) on the version of the deceased. P.Ws. 2 and 7 were the investigating officers. According to P.W. 7, he recorded the statement of the deceased u/s 161 Cr.P.C. marked Ext. 5 with objection P.W. 7 has stated that on 16.6.1992 at 12 noon he arrested the accused in his village and while in police custody the accused gave recovery of the Tangi (M.O.I) from his house and the same was seized under the seizure list Ext. 3. The axe (M.O.I) was sent to the medical officer of Dabugaon P.H.C. for his examination and opinion as to whether the injury sustained by the deceased could have been caused by the said weapon and vide Ext. 12 the medical officer has given his opinion in affirmative. M.O.I was also sent for chemical examination along with other articles and the chemical examiner's report (Ext. 13) revealed that the axe contained human bloodstains but no opinion was given regarding the blood group due to deterioration. The napkin, bandage and thread seized after the post-mortem examination contained human blood of Group 'B'. 11. The learned Addl. Sessions Judge placed reliance on the statements of P.Ws. 3, 4 and 5 and believing recovery of the weapon of office (M.O.I) at the instance of the accused has found the accused to be the author of the crime which cannot be interfered with. As observed earlier, the statements of P.Ws. 3, 4 and 5 cannot be disbelieved merely because they were relations of the deceased. They are consistent with each other and there is no infirmity in their statements and nothing has been elicited in their evidence to discredit them. Thus the statement made by the deceased before them was the dying declaration u/s 32 of the Evidence Act. 12. Regarding reliability of dying declaration, the Apex Court in the case of Smt. Laxmi Vs. They are consistent with each other and there is no infirmity in their statements and nothing has been elicited in their evidence to discredit them. Thus the statement made by the deceased before them was the dying declaration u/s 32 of the Evidence Act. 12. Regarding reliability of dying declaration, the Apex Court in the case of Smt. Laxmi Vs. Om Prakash and Others, held as follows : "One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it." 13. Keeping in view the aforesaid principles, the statements of P.Ws. 3, 4 and 5 can be safely relied upon in the present case. Hence the irresistible conclusion would be that the accused dealt a severe blow by means of the axe (M.O.I) with its sharp side on the right side shoulder of the deceased which proved fatal. 14. The next contention of Smt. Das is that even if it is held that the accused dealt the blow with axe on the shoulder of the deceased which turned to be fatal, he cannot be convicted u/s 302 IPC, since he had no intention to do away with the life of the deceased, and at best he can be held guilty u/s 304, Part-ll of IPC. In support of her contention Smt. Das placed reliance on the decisions reported in Sukra Sahu and another Vs. State of Orissa, ; Sankar Bag Vs. State of Orissa, and Kalia alias Duryodhan Naik Vs. State of Orissa, Shri Acharya refuted the contention of Smt. Das. 15. In support of her contention Smt. Das placed reliance on the decisions reported in Sukra Sahu and another Vs. State of Orissa, ; Sankar Bag Vs. State of Orissa, and Kalia alias Duryodhan Naik Vs. State of Orissa, Shri Acharya refuted the contention of Smt. Das. 15. In the present case, it is evident that a single blow with the sharp side of an axe was dealt by the accused on the right shoulder of the deceased, as a result of which the deceased sustained bleeding injury and a case u/s 324 IPC had been registered. But subsequently on 14.6.1992 the deceased succumbed to the injuries. The accused allegedly demanded back the ornaments and other articles of his deceased sister and on refusal by the deceased he was infuriated, might be due to altercation with the deceased and suddenly he dealt the blow by means of axe. Thus it is evident that ho dealt the blow due to grave and sudden provocation on account of altercation between him and deceased and no intention can be attributed to the accused to cause the death of the deceased. 16. It is well settled principle of law that the Second Part of Section 304 IPC will apply when there is no guilty intention, but there is guilty knowledge. In other words, the act by which death was caused, was done with the knowledge that the act was likely to cause death, but without any intention to cause death or such bodily injury as was likely to cause death or so imminently dangerous that it must in all probabilities cause death, or such bodily injury as was likely to cause death, without any excuse for incurring the risk of causing death. But Part-l of Section 304 IPC will apply where the act by which death was caused was done either with the intention to cause death or with the intention to cause such bodily injury as was likely to cause death. As stated earlier, in the present case, no intention can be attributed to the accused to cause ' the death of the deceased or to cause such bodily injury as was likely to cause death. Therefore, the present case will clearly fall within the ambit of Part-ll of Section 304 IPC. As stated earlier, in the present case, no intention can be attributed to the accused to cause ' the death of the deceased or to cause such bodily injury as was likely to cause death. Therefore, the present case will clearly fall within the ambit of Part-ll of Section 304 IPC. Accordingly, the conviction of the accused u/s 302 IPC cannot be sustained and is liable to modified to one u/s 304 Part-ll of IPC. The learned Addl. Sessions Judge has not dealt with this aspect of law while convicting the accused u/s 302 IPC. In view of this, any discussion regarding applicability of the three decisions relied upon by the learned counsel for the accused to the present case will be mere academical. 17. In the result, the Jail Criminal Appeal is partly allowed. The conviction of the accused u/s 302 IPC and the sentence of rigorous imprisonment for life vide judgment dated 24.6.1994 passed by the learned Addl. Sessions Judge, Jeypore in Sessions Case No. 98 of 1992 (S.C. No. 241/92) is set aside and instead the accused is convicted u/s 304, Part-ll of IPC and is sentenced to undergo rigorous imprisonment for ten years. P.C. Naik, J. 18. I agree. Final Result : Partly Allowed