JUDGMENT : P.K. Tripathy, J. - Heard argument and the judgment is as follows: Learned Additional Sessions Judge, Jeypore delivered the impugned judgment on 10.11.1998 in Sessions Case No. 50 of 1997 (Sessions Case No. 332 of 1996 on the file of the Sessions Judge, Koraput Jeypore) arising out of G.R. Case No. 102 of 1996 of the Court of J.M.F.C., Laxmipur by recording order of conviction against the Appellant for the offence u/s 302 Indian Penal Code on the allegation that at about 2.00 AM on 18.9.1996 he caused homicidal death of his wife Binja Saunta (hereinafter referred to as 'the deceased'). Learned Addl. Sessions Judge sentenced the Appellant to imprisonment for life with a direction to set off the period of detention as under trial prisoner. 2. Prosecution case is that the deceased had gone to her parents' house and returned to her matrimonial house a few days before the date of occurrence. The accused and the deceased have two children out of the wedlock but usually in the night they were sleeping in the house of Krushna Saunta (P.W.5), one of the younger brothers of the accused. Dharma Saunta (P.W.4) is the other younger brother of the accused. Both the aforesaid two brothers of the accused live separately in separate houses but in the same village. The distance as deposed to between the house of the accused and his brothers is about 200 to 300 ft. According to the further case of the prosecution, in the night of 18.9.1996 Misra Saunta (P.W.8) being the adjoining neighbour on western side of the accused heard the shout of the deceased stating that the accused was assaulting her. He went and found that the door of the occurrence room was bolted from inside. He knocked at the door but did not get any response. Therefore, he approached Ansu Saunta (P.W.6) and Santi Jani (P.W.7), the two front door neighbours and along with them again came to the occurrence house. They heard sound MARIGALI MARIGALI. In spite of their efforts, they could not enter into the occurrence room because its door was closed from inside and due to darkness they did not dare to try from the back side of the house. They heard sound MARIGALI MARIGALI. In spite of their efforts, they could not enter into the occurrence room because its door was closed from inside and due to darkness they did not dare to try from the back side of the house. On the following day, Jaga Saunta one of the minor sons of the accused and the deceased went and discovered the dead body of her mother and informed the matter to P.W.5. Thereafter, P. Ws.4 and 5 and other villagers including P. Ws.6,7 and 8 all discovered the deceased lying dead with multiple bleeding injuries. P. Ws. 6,7 and 8 narrated about the previous night experience and thereafter F.I.R. Ext.7 was lodged by P.W.5 at Kakiriguma Police Station. In course of first phase of investigation on 18th and 19th September, 1996 the investigating officer proceeded in routine manner starting from visiting the spot, inquest over the dead body, forwarding the same for post-mortem examination, seizure of blood stained, sample earth and other incriminating materials besides examination of witnesses, etc. On 20th September, 1996 accused appeared in the house of P.W.4 Dharma Saunta. Then he was armed with the blood stained axe, M.O.I. On getting information about that, P.W.13 the I.O. came and arrested the accused. He also recorded the voluntary statement made by the accused Ext.14 and seized the axe under seizure list Ext.6. The Investigating Officer forwarded the accused for medical examination by Dr. Sunita Bramha (P.W.12) along with the requisition to collect his blood sample and nail clippings. Incriminating seized articles were sent for chemical analysis and serological test under forwarding letter Ext. 18. The reports from the S.F.S.L. are Exts.19 and 19/1. P.W.14 is the doctor who conducted autopsy on the dead body of the deceased and proved the post-mortem report Ext.20 so also opinion report Ext. 16/1. The other witnesses are relating to seizure u/s 27 of the Evidence Act, inquest, production and seizure of wearing apparels of the deceased. Accused took the plea of denial at the stage of framing charge so also at the trial but did not adduce any defence evidence. Referring to the evidence of P.W.14, Learned Addl. Sessions Judge held that the deceased suffered homicidal death due to ante-mortem injuries. Referring to the evidence of P. Ws.6,7 and 8, Learned Addl. Accused took the plea of denial at the stage of framing charge so also at the trial but did not adduce any defence evidence. Referring to the evidence of P.W.14, Learned Addl. Sessions Judge held that the deceased suffered homicidal death due to ante-mortem injuries. Referring to the evidence of P. Ws.6,7 and 8, Learned Addl. Sessions Judge held that accused is the author of the injuries which resulted in homicidal death of the deceased. In recording such finding, showing the Appellant as the culprit, Learned Addl. Sessions Judge took aid of the other evidence on record as complementary and supplementary evidence to substantiate the charge. 3. Learned Counsel for the Appellant argues that Ext.6 cannot be read as a seizure u/s 27 of the Evidence Act when there was no question of giving discovery of weapon from any place of concealment. He further argues that P. Ws.6 to 8 did not state before the Trial Court that they had seen the accused assaulting or had known about his presence inside the occurrence room and that the report from S.F.S.L. Exts.19 and 19/1 does not ipso facto prove the crime against the Appellant. He argues that under the given facts and circumstances accused should have been granted the benefit of doubt. Learned Standing Counsel repelling the aforesaid argument of the Appellant contends that evidence of P.W.5 read together with evidence of P. Ws.6 to 8 would clearly indicate that the accused was in the house and cry of deceased sufficiently proves on record that it was the accused who committed the murder. Before dealing with the above aspect, we take note of the evidence of P.W.14. He has stated that in course of the post-mortem examination he noticed incised injuries on the left upper chest, left upper back, left lumbar region and right thigh. On dissection, he found fracture of 4th, 5th and 6th rib and injury to the middle lobe of the left lung. He opined that death was due to haemorrhage, shock and neurogenic shock produced due to injury to the left lung and also the multiple incised wounds. Indeed, the aforesaid evidence of P.W.14 clearly establishes homicidal death of the deceased. 4. Coming to the contention of the Appellant about his innocence on the above noted plea, we find on a reference to the spot map Ext. Indeed, the aforesaid evidence of P.W.14 clearly establishes homicidal death of the deceased. 4. Coming to the contention of the Appellant about his innocence on the above noted plea, we find on a reference to the spot map Ext. 13 and the index thereof that P.W.8 has his house adjoining on the western side to the house of the accused and P. Ws.6 and 7 have their houses just in front of the house of the accused being intervened by the village road. Under such circumstance, competency of such witnesses to know the family affairs of the accused cannot be taken adversely. Each of them has stated about the accused and the deceased staying in the house in the occurrence night and their two children having gone to the house of P.W.5 to sleep in the night. Apart from that, their evidence about the commotion from the occurrence house and the plea for rescue and the words uttered by the deceased at that time are sufficient to draw the valid presumption that the deceased who was last seen with the accused in that occurrence house suffered assault and injuries inflicted by the accused. Apart from that, in course of the trial accused has not taken the plea of alibi nor proved it. Therefore, argument of the Appellant does not hold good so as to grant him the benefit of doubt. 5. Argument of the Appellant that the seizure list Ext.6 cannot be accepted u/s 27 of the Evidence Act is not disputed by the Learned Standing Counsel. Therefore, that seizure and the statement made thereof are admissible u/s 8 of the Indian Evidence Act. 6. Learned Counsel for the Appellant alternatively argues that Ext.14 is the statement which speaks the circumstance in which the occurrence took place and, there is no contrary evidence on record to disbelieve or discredit the same and therefore, if the circumstances narrated therein are accepted then the assault which the accused made was in retaliation not only to the questionable movement of the deceased but also provocation provided through assault on him by the deceased by using stick and under such circumstance it would be a case of homicidal death not amounting to murder punishable u/s 304, Indian Penal Code. Learned Standing Counsel initially differing from the aforesaid argument pursues for confirmation of the order of conviction u/s 302 Indian Penal Code but he does not dispute for acceptance of the document u/s 8 of the Evidence Act. Under such circumstance, we peruse Ext. 14, which was not at all utilized by the Trial Court while judging culpability of the Appellant. That statement is inculpable in nature. In that statement, accused stated that deceased had returned from her parents house to join with him about a month's back and after feeding the children she was going to the village Basti to spend the night and therefore, in the night of occurrence he asked her as to why in every night she was going to the village Basti to spend the night. The deceased with boldness stated that she was free to move anywhere she liked and even she may accept other male persons. On hearing this, the accused dealt a slap and in retaliation the deceased also assaulted him by using stick (Badi). That enraged the accused and he picked up the axe inside the room and dealt blows. On sustaining such blows when deceased fell down and died, the accused became scared and ran away but after learning that police had come, he thought it proper to return to the village and to surrender to the police by producing the axe. This statement appears to be true. There is no contrary evidence on record adduced by the prosecution. If that circumstance which led to the occurrence would be considered then it can be reasonably said that there were no intention or premeditation to commit the murder of the deceased and at the spur of the moment, when uncontrollable provocation was supplied by the deceased, the accused dealt blows by axe of which the blow on the chest affecting the ribs and lungs became fatal. Under such circumstances, we agree with the argument of the Appellant for his conviction u/s 304, First Part, Indian Penal Code instead of conviction u/s 302, Indian Penal Code. 7. In view of the aforesaid findings and modifications of the order of conviction, the accused is acquitted from the charge u/s 302 Indian Penal Code and the sentence of imprisonment for life and in its place, he is held guilty u/s 304, First Part, Indian Penal Code and sentenced to rigorous imprisonment for 10 years. 7. In view of the aforesaid findings and modifications of the order of conviction, the accused is acquitted from the charge u/s 302 Indian Penal Code and the sentence of imprisonment for life and in its place, he is held guilty u/s 304, First Part, Indian Penal Code and sentenced to rigorous imprisonment for 10 years. 8. It is stated at the Bar that after his arrest on 20th September, 1996 the accused has remained in jail custody all through out. If that be so then he has spent time in jail for more than 10 years and in that event he is entitled to be released forthwith after setting off the period of detention u/s 428, Code of Criminal Procedure However, he may not be so released if his detention is necessary in connection with any other criminal case. 9. The jail criminal appeal is accordingly allowed in part. Final Result : Allowed