JUDGMENT : 1. When the case is taken up today for consideration of the bail application in Misc. case No. 19 of 2008, Learned Counsel for the Appellant as well as Mr. Nanda, Learned Addl. Government Advocate states that both of them are ready for hearing of the appeal on merit and it may be heard and disposed of. Regard being had to the aforesaid submission, the Jail Criminal appeal which is pending since 2000 is heard and disposed of in the following manner: 2. Appellant has been convicted for the offence of Section 302, I.P.C. by Learned Sessions Judge, Keonjhar in Sessions Trial No. 72 of 1996, arising out of G.R. Case Nos. 335 of 1995 of the Court of J.M.F.C., Barbil and sentenced to imprisonment for life 3. Prosecution case is that on 22.10.1995 at about 5.30 P.M. occurrence of assault occurred in which the Appellant dealt blow by means of Katari, M.O.I by using its blunt side. It appears from the lower Court records and the impugned judgment that in course of Dussahara festival, which was prior to the date of occurrence, sister of the deceased i.e. P.W. 4-Saibani Munda reported to the deceased that the accused finding her alone ravished her. On 22.10.1995, when the accused and the deceased and the other workers returning from mines, near Hatimara Chhak, the deceased challenged the accused for such indecent act. That resulted in a scuffle between the two and the co-workers separated them. House of the accused was nearby that spot. He ran to his house and returned with the M.O.I and dealt a blow to the head so also a few other places of the body of the deceased as per the version of the eye witnesses to the occurrence. Ultimately, the deceased suffered death at the spot. The matter was reported to the Toda Police Station and after investigation, charge-sheet was submitted against the accused. 4. Learned Sessions Judge, after receipt of the case on commitment, framed charge against the Appellant u/s 302, I.P.C. Accused denied to the charge and claimed for Trial. 5. To substantiate the charge, prosecution examined thirteen witnesses and exhibited documents, Exts. 1 to 18, besides the material object, M.O.I, as against no evidence adduced from the side of the accused-Appellant amongst the witnesses, P.W. 7 Dr. 5. To substantiate the charge, prosecution examined thirteen witnesses and exhibited documents, Exts. 1 to 18, besides the material object, M.O.I, as against no evidence adduced from the side of the accused-Appellant amongst the witnesses, P.W. 7 Dr. Benudhar Muduli is the doctor, who conducted autopsy on the dead body of the deceased P.W. 6 Bijaya Munda and P.W. 10 Ratna Munda are two of the eye witnesses. Relying on the evidence of P.W. 7 and the postmortem report, Ext. 6, besides the opinion report, Ext. 7, Learned Sessions Judge held that the deceased suffered homicidal death because of the head injury caused by M.O.I. In course of Trial, P.W. 6 did not support the prosecution and therefore, prosecution declared him hostile and put leading questions. Nonetheless, P.W. 10, the other eye witness to the occurrence, supported the prosecution whole-heartedly. On scanning such evidence together with the other corroborative evidence, Learned Sessions Judge found that the prosecution has proved beyond all reasonable doubt that accused is the author of the injury. Accordingly, he convicted him the manner already indicated. 6. Learned Counsel for the Appellant argues that the Appellant being detained in the jail custody although out, has already spent about 13 years, notwithstanding the fact that the evidence available on record if read in favour of the prosecution, then it amounts to the offence of culpable homicide not amounting to murder. He argues that accused have no intention to kill the deceased and that is readable from one circumstance available on record. In that respect, he submits that when the Appellant used M.O.I as the weapon of offence, he did not use its sharp edge to inflict the injury to the deceased. Admittedly, the act of assault of the accused was preceded by a scuffle in which provocation was supplied from the deceased and under such circumstance, the Appellant cannot be held to be guilty of murder. Learned Addl. Government Advocate argues that when the single blow on the head of the deceased resulted in his death at the spot, accused cannot take advantage of the aforesaid argument to wriggle out from the conviction u/s 302, I.P.C. 7. Learned Addl. Government Advocate argues that when the single blow on the head of the deceased resulted in his death at the spot, accused cannot take advantage of the aforesaid argument to wriggle out from the conviction u/s 302, I.P.C. 7. On due consideration of the rival contention and on perusal of the evidence, we notice that in course of postmortem examination, P.W. 7 found that there was a lacerated wound over the scalp on occipital region of the size 6" X 3" X 2". He has also opined that such injury is possible by M.O.I. Exts. 6 and 7 run consistent to the aforesaid evidence of P.W. 7. When M.O.I is a Katuri, existence of lacerated wound on the head undoubtedly suggests that the blow was given by the blunt side of the weapon. P.W. 7 did not find any other external injury on the body of the deceased. That circumstance speaks loudly about the intention of the Appellant to give a good beating and not to kill the deceased. In that respect, assertion of P.W. 10 about dealing of successive blows is not substantiated or corroborative by P.W. 7. Prosecution case itself rests on the theory that the deceased was the aggressor and provoked the accused by ensuing into a scuffle. We should not forget the background of the accused and the deceased both of whom are labourers and residents of a tribal infested area like Keonjhar. 8. Regard being had to such facts, circumstances and the submissions noted above, we find that though prosecution has proved that accused is the author of the injury on the head of the deceased and that injury resulted in death of the deceased, but the accused having no intention to commit the murder, his conviction u/s 302, I.P.C. is not sustainable. On the other hand, act of the accused comes within the purview of Section 304, I.P.C. first part being covered by exception provided in Section 300, I.P.C. Thus, while setting aside the order of conviction u/s 302, I.P.C. and the sentence thereof, we find the Appellant guilty of the offence of culpable homicide and convict him u/s 304, first part, I.P.C. and sentence him to rigorous imprisonment for a period of 10 (ten) years. 9. 9. As noted above, it is the contention of the Learned Counsel for the Appellant that the accused has been detained in the jail custody for about 13 years. If that be so and if Appellant's detention in jail custody is not required in connection with any other case, then he may be set at liberty forthwith. Release order be issued accordingly but immediately. Jail Criminal Appeal is accordingly allowed in part. Appeal allowed in part. Final Result : Allowed