JUDGMENT : L. Mohapatra, J. - This appeal has been preferred by the Appellant challenging the order of conviction and sentence passed by the Learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 40 of 1995 convicting him for commission of offence u/s 302 of the Indian Penal Code (in short 'I.P.C.') and sentencing him to undergo rigorous imprisonment for life. 2. Prosecution case is that on 20.10.1994, after entering the Information of murder in the Station Diary, the A.S.I. of Police, Nudadlha Out-post went to the village Harldachua to make an enquiry. The Officer-in-charge of Kaptipada Police Station also reached in the village after entering the information received by him in the station diary. On arrival of the officers, the father-in-law of the deceased, Kanchan Singh, P.W. 1 lodged the F.I.R. which was accepted by the O.I.C., Kaptipada P.S. It is alleged in the F.I.R. by P.W. 1 that the deceased Jhukudu is the younger brother of the accused persons and the deceased had married his daughter Suni and was staying at Haridachua. P.W. 1 and his wife were staying in the village Badjhed, which is separated from the village of the accused persons by a small stream. Both the accused persons were accusing the wife of the deceased to be a witch and they had strained relationship. On the date of occurrence in the night, the informant P.W. 1 heard his daughter shouting that the deceased was shot by an arrow. On hearing this, he sent his wife (P.W.4) to enquire into the matter where after he also went to the house of the deceased. He found the deceased lying with an arrow sticking to his belly and on being asked, the deceased told to have been shot by the present Appellant Rathi while both the deceased and his wife had gone to the house of accused Paru (since acquitted) for pacifying the allegation of witchcraft made against the wife of the deceased. The information P.W. 1 called others, such as P. Ws. 2 and 3, to the place of occurrence and the deceased also disclosed before those witnesses that he was being shot by his elder brother, the present Appellant. The deceased succumbed to the injuries at about 11 P.M. on the very same night. The information P.W. 1 called others, such as P. Ws. 2 and 3, to the place of occurrence and the deceased also disclosed before those witnesses that he was being shot by his elder brother, the present Appellant. The deceased succumbed to the injuries at about 11 P.M. on the very same night. On these allegations made in the F.I.R., investigation was taken up and charge-sheet was filed against two accused persons, namely, Rathi Singh, the present Appellant and one Paru Singh. 3. The Appellant faced trial u/s 302 I.P.C. for committing murder of the deceased Jhukudu Singh and accused Paru Singh stood charged for commission of offence u/s 307 I.P.C. for threatening the deceased with bow and arrow. On the basis of dying declaration made before P. Ws. 1 to 4 and the evidence of P. Ws.5 and 7, the Trial Court found the Appellant guilty of the charge u/s 302 I.P.C. and convicted him hereunder and accused Paru Singh was acquitted of the charge u/s 307 I.P.C. 4. Prosecution examined eight witnesses to prove its case but none was examined on behalf of the defence. The plea of the defence is complete denial of the prosecution case. Out of the eight witnesses examined on behalf of the prosecution, P. Ws. 1 to 4 are the witnesses to dying declaration and P.W. 5 is the eye-witness to the occurrence as well as witness to dying declaration. P. Ws. 6 and 8 are the Investigating Officers. P.W. 7 is the doctor, who conducted postmortem examination over the dead body of the deceased. 5. In assailing the impugned Judgment, it is contended by the Learned Counsel for the Appellant that P.W. 5 cannot be considered as an eye-witness to the occurrence since she came to the spot after the deceased was assaulted. So far as dying declaration is concerned, it is contended by the Learned Counsel that reliance cannot be placed since the deceased after receiving injury was not In a condition to make any such statement. Apart from that so far as text of the dying declaration Is concerned, there appears to be inconsistencies in the evidence of the witnesses. So far as dying declaration is concerned, it is contended by the Learned Counsel that reliance cannot be placed since the deceased after receiving injury was not In a condition to make any such statement. Apart from that so far as text of the dying declaration Is concerned, there appears to be inconsistencies in the evidence of the witnesses. It is further contended on behalf of the Appellant that the Appellant having shot an arrow to the deceased pursuant to a quarrel between the Appellant and deceased, he could have been convicted at best for commission of offence u/s 304 Part-I, I.P.C. 6. Learned Counsel for the State referring to the evidence P.W. 5 who was examined as an eye-witness to the occurrence as well as dying declaration made before P. Ws. 1 to 4 and the evidence of P.W. 7, who conducted postmortem examination submitted that the evidence of these witnesses clearly established beyond all reasonable doubt that the Appellant shot an arrow which pierced the belly of the deceased causing fatal injury in the spleen and, therefore, the Trial Court has rightly convicted the Appellant for commission of offence u/s 302 I.P.C. 7. Undisputedly, prosecution examined P.W. 5 as the sole eye-witness to the occurrence. P.W. 5 is none else than the wife of the deceased. She in her deposition has stated that on the date of occurrence, she and the deceased had gone to the house of accused Paru Singh to pacify the allegation made against her with regard to practicing of witchcraft. There was deliberation on this issue and a quarrel ensued. Suddenly, both the accused persons brought out a bow and arrow each and declared to kill the deceased. Accused Paru pushed the deceased whereas the Appellant shot an arrow to the belly of the deceased. Thereafter, both the accused persons ran away from the spot. She brought the deceased to her house and called her father at the top of her voice. She has further stated that the deceased told her parents and Ors. that he was pushed by accused Paru and shot by the present Appellant. On further reading of the evidence of this witness, it appears that she stated before the Court that she reached immediately after the arrow was shot and she had seen the accused persons running away. She has further stated that the deceased told her parents and Ors. that he was pushed by accused Paru and shot by the present Appellant. On further reading of the evidence of this witness, it appears that she stated before the Court that she reached immediately after the arrow was shot and she had seen the accused persons running away. She has further stated before the Court that she saw the accused persons running away from a distance of 50 to 60 cubits. In view of such statement made by this witness before the Court, a doubt arises as to whether she had seen the occurrence or not. From her statement, it appears that she arrived at the spot after the arrow was shot. Therefore, we are of the view that it will be unsafe to rely on the evidence of P.W. 5 as an eye-witness to the occurrence. P. Ws.1 to 4 are the witnesses who speak about the dying declaration. P.W. 1 is the father-in-law of the deceased. He has stated in his deposition that after hearing the shout of his daughter (wife of the deceased), he rushed to her house and saw the deceased lying near the house with an arrow stuck on the left side of his belly and the deceased was bleeding. The deceased told him that accused Paru Singh pushed him and the present Appellant shot him with an arrow. Similarly, P.W. 2 after hearing about the incident came to the spot and he was told by the deceased that the Appellant shot him with an arrow. P.W. 3 has also stated that on being asked, the deceased said that the Appellant shot him with an arrow. P.W. 4 is the mother-In-law of the deceased. She has also stated that on being asked, the deceased Implicated the present Appellant to be his assailant. All these four witnesses are consistent in their statements that on their arrival at the spot, the deceased made the dying declaration before them implicating the Appellant to have shot an arrow. The evidence of all these four witnesses is corroborated by the evidence of the doctor P.W. 7, who conducted post-mortem examination over the dead body of the deceased. All these four witnesses are consistent in their statements that on their arrival at the spot, the deceased made the dying declaration before them implicating the Appellant to have shot an arrow. The evidence of all these four witnesses is corroborated by the evidence of the doctor P.W. 7, who conducted post-mortem examination over the dead body of the deceased. P.W. 7 in course of post-mortem examination found a stab wound present on the left hypo condrlum extending in the area between anterior mid and axillary lines and on dissection, it was found that there was a stab wound present in the spleen and there was huge collection of bloody fluid in the abdominal cavity. The iron portion of the arrow as well as small broken stick attached to the iron portion were also recovered from the dead body of the deceased. It is contended on behalf of the Appellant that the deceased having received an injury in the belly could not have been in a position to make the dying declaration before P. Ws. 1 to 5. But, considering the opinion of the doctor P.W. 7, it is found that even after receipt of such injury, the deceased could remain in sense at least for about one hour with the capability to talk and the deceased being a young man of sound health and body could be in a position to talk with such a wound even for more than one hour. 8. We, therefore, agree with the finding of the Learned Trial Court that it was the Appellant who shot an arrow on the belly of the deceased which ultimately caused the death of the deceased. However, from the evidence of P.W. 5, it appears that the deceased and P.W. 5 had gone to the house of the accused Paru to discuss about the allegation made against P.W. 5 and in course of such discussion, a quarrel ensued and suddenly, the Appellant shot an arrow to the deceased. The deceased and the Appellant are brothers and are tribals of the district of Mayurbhanj and the tribals are known to be short tempered. 9. The deceased and the Appellant are brothers and are tribals of the district of Mayurbhanj and the tribals are known to be short tempered. 9. Considering these aspects, we find that pursuant to the quarrel that ensued between the deceased and the Appellant, a grave and sudden provocation had arisen to commit the offence u/s 302 I.P.C. We are, therefore, of the view that the Appellant should have been convicted for commission of offence u/s 304 Part-I I.P.C., having shot an arrow on the belly of the deceased pursuant to the grave and sudden provocation. 10. We, accordingly, allow the appeal in part, set aside the impugned judgment and order of conviction passed by the Learned Sessions Judge, Mayurbhanj-Baripada in S.T. Case No. 40 of 1995 against the Appellant u/s 302 I.P.C. and convict him for commission of offence u/s 304 Part-I I.P.C. and sentence him to undergo rigorous imprisonment for ten years. It appears from the record that the Appellant is in custody for more than ten years. If that be so, the Appellant, namely, Rathi Singh be set at liberty forthwith, unless his detention is required in any other case. Final Result : Allowed