JUDGMENT : A.S. Naidu, J. - The Judgment & order of conviction dated 17th January, 1997 passed by Learned Sessions Judge, Khurda-Bhubaneswar convicting the Appellant u/s 302 I.P.C. & sentencing him to undergo R.I. for life in S.T. Case No, 1 19/218 of 1996 is assailed in this Criminal Appeal. 2. On the basis of an F.I.R. lodged by B. Adi Narayan in the Capital Police Station, the O.I.C. registered P.S. Case No. 69/1996. It was alleged in the F.I.R. that the Appellant had intentionally committed murder of Simadri. He was charged u/s 302 of I.P.C. According to prosecution, the Appellant & Simadri were rickshaw-pullers by profession. On 22.1.1996 a quarrel ensued between them, consequently Simadri picked up a richshaw axil from a neighboring cycle repairing shop of Tirupati (P.W.7) & tried to assault the accused-Appellant. At that Juncture Tirupati and Ors. intervened & P.W. 7 snatched away the axil from the hand of the accused & prevailed upon both of them to go away. After some time Simadri came to the shop of the informant & requested to give him change of rupees fifty. All of a sudden the accused came there picked up the axil from the shop of Tirupati & assaulted on the head of Simadri from behind. Due to the said assault Simadri sustained grievous injuries on his head & fell down at the spot. After assaulting, the accused ran away with the axil. The injured Simadri was immediately shifted to hospital where he was declared dead. 3. On the basis of the F.I.R. (Ext.4) lodged by B. Adi Narayan (P.W.4), the betel shop-keeper in front of shop the incident took place, investigation whose commenced. In course of investigation, accused was arrested & while in police custody he gave recovery of the weapon of offence (M.O.I). As usual, inquest was made, the dead body was sent for post mortem & after completion of the investigation, charge sheet was submitted before Learned S.D.J.M., Bhubaneswar in G.R. Case No. 260/1996. Learned S.D.J.M., after being satisfied that prima facie materials were available, took cognizance of the offence & committed the case to the Court of Session for trial. 4. The plea of the defence was of complete denial. Learned S.D.J.M., after being satisfied that prima facie materials were available, took cognizance of the offence & committed the case to the Court of Session for trial. 4. The plea of the defence was of complete denial. According to the accused, when he had parked his rickshaw near the railway station, police came & took him to the P.S. & without any rhyme or reason forcibly obtained his signatures on blank papers & falsely roped him in the case. 5. In order to substantiate its case, the prosecution got examined ten witnesses. Out of whom P.W. 1 was the Medical Officer, who conducted the autopsy, P.W. 2 was the seizure witness & the A.S.I. of Police. P. Ws.3,5,6 & 8 were the post occurrence witnesses, P.W. 4 was the occurrence witness, P.W. 7 was a witness to the first quarrel between the accused & the deceased, P.W. 9 was the police constable who had escorted the dead body for post mortem & P.W. 10 was the I.O. The defence examined no witness. 6. The evidence of the doctor (P.W.1) as well as the post mortem report clearly established that the death of Simadri was homicidal in nature. Learned Sessions Judge after discussing the evidence threadbare arrived at a conclusion that the prosecution was successful in establishing the case & there was no doubt that the accused caused the death of Simadri by assaulting him on the vital part of his body by means of M.O. I & thereby committed the offence of murder. 7. Mr. G.K. Mohanty, Learned Counsel for the Appellant meticulously took this Court through the oral evidence. According to him, there were discrepancies in the evidence of different witnesses & the Learned Sessions Judge acted illegally & with material irregularity in convicting the Appellant. 8. The aforesaid submissions are strongly repudiated by Learned Counsel for the State. 9. In order to appreciate the submissions advanced by both the parties, we diligently went through the evidence & patiently heard the Counsel. P.W. 4 is the eye witness to the occurrence. He has clearly narrated the incident before the Court in his deposition. Nothing could be elucidated from him to disprove his statement. Apart from P.W. 4, there is no other eye witness to the occurrence. P.W. 7 in his deposition throws some light with regard to the incident. P.W. 4 is the eye witness to the occurrence. He has clearly narrated the incident before the Court in his deposition. Nothing could be elucidated from him to disprove his statement. Apart from P.W. 4, there is no other eye witness to the occurrence. P.W. 7 in his deposition throws some light with regard to the incident. According to him at about 1.30 P.M. on the date of occurrence the accused & Simadri quarreled with each other near a cycle repairing shop & he intervened & separated them. He further deposed that during that quarrel Simadri took a rickshaw axil from his shop & tried to assault the accused, but then he intervened & snatched away the axil from Simadri & kept it under the tool box. After separation, both of them went in different direction. P.W. 4, the eye witness, also corroborated the said statement. According to P.W. 4 after some time Simadri came to his shop & asked for change of Rs. 50. At that juncture the accused, whose anger had not subsided, came & snatched the axil from underneath the box of P.W. 7 & gave a blow on the head of Simadri. Cumulative assessment of the entire evidence leads to a conclusion that the accused had lost his self control & due to sudden provocation & in a fit of anger he assaulted the deceased with the axil. Admittedly, both the accused & the deceased are rickshaw pullers by profession. They belong to the downtrodden class of society. The are usually habituated to drinks & arc very sensitive by character. The prosecution Case clearly reveals that Simadri had attempted to assault the accused with the axil of the cycle, but then due to intervention of P.W. 7 the attempt was frustrated. Soon thereafter the accused snatched the axil & out of anger & in the heat of passion gave one blow on the head of Simadri. All these facts reveal that he had no intention to kill Simadri, but then it occasioned due to sudden anger. 10. Soon thereafter the accused snatched the axil & out of anger & in the heat of passion gave one blow on the head of Simadri. All these facts reveal that he had no intention to kill Simadri, but then it occasioned due to sudden anger. 10. In view of the aforesaid discussions while confirming the finding of Learned Sessions Judge, this Court feels that it is a fit case where the conviction should be one u/s 304, Part -II I.P.C. instead of Section 302 of the I.P.C. We, therefore, set aside the Judgment & order of conviction dated 17th January, 1997 passed by Learned Sessions Judge, Khurda- Bhubaneswar convicting the Appellant u/s 302 I.P.C. & sentencing him to undergo R.I. for life in S.T. Case No. 19/218 of 1996 & hold the Appellant guilty u/s 304, Part-II I.P.C. & sentence him to undergo the period already undergone. 11. It is stated at the Bar that the Appellant? Kodanda @ Ramaya Reddy is in custody for more than thirteen years & is still continuing in custody. If that be so, he be set at liberty forthwith, unless his detention is required in any other case. S.C. Parija, J. 12. I agree. 13. Appeal allowed. Final Result : Allowed