JUDGMENT : Pradip Mohanty, J. - This is an appeal against the judgment and order dated 16th February, 1996 passed by the Learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 100 of 1994 convicting the Appellant u/s 302, Indian Penal Code and sentencing him to undergo imprisonment for life. 2. The case of the prosecution, as emerges from the FIR and the evidence on record, in brief is that informant is the nephew (Bhanaja) of both the deceased and the Appellant. On 15.11.1993 he along with both the maternal uncles (appellant and deceased) after preserving paddy in his house went to the house of Budhuram. In the evening, all of them took Handia and the Appellant went to his house. The deceased and the informant took their meals in the house of the informant and, thereafter, the informant carried some rice for his grand-mother residing in the house of the deceased. Both the accused and the deceased reside in the same room divided by a partition wall. On their arrival, they found the Appellant quarrelling with his wife. The deceased interfered at which the Appellant attempted to assault him by means of a stick. The informant snatched the stick and threw it away. Thereafter, while the deceased and the informant were returning from the house of the Appellant, the Appellant went inside his house, brought out a crow bar and dealt a severe blow on the head of the deceased as a result of which the deceased fell down. Thereafter the Appellant also gave two more blows by the said crow bar. On the basis of the FIR lodged by the informant, investigation was conducted and ultimately charge sheet was filed. 3. The plea of the Appellant is one of complete denial. No evidence, either oral or documentary, has been adduced on behalf of the Appellant in support of his plea. 4. In order to substantiate its case, prosecution examined as many as seven witnesses, out of whom P.W. 1 is the sole eye witness, P.W. 2 is the wife of the Appellant, who, though cited as an eye witness, did not support the case of the prosecution, P.W. 4 is a post-occurrence witness, P.W. 3 is a witness to the seizure and recovery of the crow bar (M.O. I), which the accused gave while in custody and P.W. 7 is the Investigating Officer. 5. 5. Learned Sessions Judge after considering the evidence of record convicted the Appellant u/s 302, Indian Penal Code and sentenced him to undergo imprisonment for life. 6. Learned Counsel for the Appellant has assailed the impugned order of conviction on the ground of identity. He contended that it could not have been possible to identify the Appellant in the dark night. He further contended that the requirements of Section 27 of the Evidence Act having not been complied with, the evidence regarding recovery and seizure of the weapon of offence is not admissible. Lastly, he submitted that even if the prosecution case is believed to be true, the occurrence was the outcome of a sudden quarrel between the Appellant and the deceased. Due to sudden provocation, the Appellant brought out the crow bar and assaulted the deceased. Therefore, at best, he may be convicted u/s 304, Part-I, Indian Penal Code and not u/s 302, Indian Penal Code. 7. Admittedly, the occurrence took place at 9 p.m. Both P. Ws. 1 and 2 were cited as eye witnesses to the occurrence. P.W. 1 is the nephew of the deceased as well as the Appellant and P.W. 2 is the wife of the Appellant. P.W. 2 did not support the prosecution case. Therefore, P.W. 1 is the sole witness, who had seen the occurrence. It is the admitted case of the prosecution that both the Appellant and the deceased were staying in one room with a partition wall. The relationship of P.W. 1 with the Appellant and deceased is the most important factor for appreciating the question of identification. Admittedly, there was no inimical relationship between P.W. 1 and the Appellant. P.W. 1 can very well identify the Appellant even in the absence of light P.W. 1 has specifically stated in his evidence that the deceased was six feet behind him. P.W. 1 also admitted in his evidence that no one was present except P.W. 2, the wife of the Appellant, and that he saw the entire occurrence with the help of the Dibiri light, which was kept burning in front of the house of the Appellant. Nothing has been brought out by way of cross-examination to discredit his evidence. Therefore, there is no dispute with regard to the identity of the assailant and the role played by the Appellant. Nothing has been brought out by way of cross-examination to discredit his evidence. Therefore, there is no dispute with regard to the identity of the assailant and the role played by the Appellant. This fact was corroborated by P.W. 4, who had heard the occurrence from the wife of the Appellant (P.W. 2) and while cross-examining this witness, excepting a suggestion that he is stating falsehood, no other question has been put to discredit his evidence. The evidence of P.W. 1 also finds sufficient corroboration from the evidence of P. Ws. 3 and 7. According to them, the Appellant has given recovery of the weapon of offence. Therefore, the first and second contentions raised by the counsel for the Appellant have no force. 8. So far as the third contention raised by the Appellant, admittedly there was a quarrel between the Appellant and P.W. 2, his wife, in his room in which the deceased intervened. The deceased was the elder brother of the Appellant and there was good relationship between the two. Due to the interference of the deceased in their family life, out of anger the Appellant gave the blows to the deceased. In the above scenario, this Court is of the opinion that the conviction of the Appellant u/s 302, Indian Penal Code is not sustainable and he should be convicted u/s 304, Part-I, Indian Penal Code. 9. In the result, the appeal is allowed in part. The conviction of the Appellant is altered from one u/s 302, Indian Penal Code to that u/s 304, Part-I, Indian Penal Code and he is sentenced to undergo rigorous imprisonment for ten years. P.K. Tripathy, J. 10. I agree. Appeal partly allowed. Final Result : Allowed