JUDGMENT : S.C. Parija, J. - This Criminal Appeal is directed against the judgment dated 18.09.1997, passed by the 1st. Additional Sessions Judge, Berhampur, in S.C. No. 4/97 (S.C. No. 59/97 GDC) holding the accused Appellant guilty of the offence u/s 302 Indian Penal Code & convicting him thereunder. 2. The case of the prosecution, in brief, is that the informant Arakhita Jena, being the elder brother of deceased Bhagyalata Swain, lodged a written report on 13.08.1996 at Bhanjanagar P.S. alleging that his sister was given in marriage to Sivaram Swain, younger son of Magi Swain of village Badakodanda. For the marriage, the parents of deceased Bhagyalata had given cash of Rs. 5000, gold ornaments, utensils, paddy & cash of Rs. 2200 towards purchase of furniture. Accused Sivaram Swain used to assault his wife Bhagyalata at times for payment of dowry. Whenever her father used to go to see his daughter Bhagyalata, he was not allowed to talk to her. Bhagyalata came to the house of her father to attend some function & while she was in the house of her father, daughter of Magi Swain, who is the sister of accused Sivaram, came to the house of the informant (P.W.1) & asked for the key of the almirah, which was with Bhagyalata. Magi Swain himself came to the house of the informant (P.W.1) & asked for the keys of the almirah. Bhagyalata handed over the key & Magi Swain came to the house of the accused & opening the almirah, handed over some clothes to his daughter & thereafter the key of the almirah was handed over to the accused Sivaram, who refused to accept the same. Accused Sivaram Swain on opening the almirah with the duplicate key, found that two gold rings were missing. Accused Sivaram enquired about it from his father Magi Swain. Thereafter, the mother of the accused came to the house of P.W. 1 & took her daughter-in-law Bhagyalata to the house of the accused. When she arrived at the house, accused Sivaram challenged Bhagyalata as to why she handed over the key of the almirah to his father without his consent. A quarrel took place between them & Gouda Swain @ Gopal Swain, elder brother of accused Sivaram intervened & tried to separate both the husband & wife. When she arrived at the house, accused Sivaram challenged Bhagyalata as to why she handed over the key of the almirah to his father without his consent. A quarrel took place between them & Gouda Swain @ Gopal Swain, elder brother of accused Sivaram intervened & tried to separate both the husband & wife. Accused Sivaram in a fit of anger chewed the fingers of his brother, who went to the hospital for treatment. Thereafter, accused Sivaram assaulted Bhagyalata, as a result of which she died. During this incident, father Magi Swain was present in the house. When they found that Bhagyalata had died, they decided to burn the dead body of Bhagyalata but the matter came to the notice of the villagers. The relatives of deceased Bhagyalata & the villagers gathered at the house of accused Sivaram & thereafter the police came on receiving the FIR from the informant (P.W.1). 3. The police found the dead body of Bhagyalata lying in the last room of the house situated towards the back side. Inquest was held over the dead body & the same was sent for post-mortem examination. The police seized different incriminating articles at the spot, including sample soil & blood-stained soil. The dead body of Bhagyalata had bleeding injuries on her face, cheek, eyes & marks on the neck. The I.O sent the seized articles for chemical examination & on receipt of the post-mortem report, arrested accused Sivaram Swain & on completion of the investigation, submitted charge sheet against the accused under Sections 302/498-A/323/& 406 Indian Penal Code & u/s 4 of the Dowry Prohibition Act ("D.P. Act" for short). 4. The plea of the defence was one of complete denial. The accused in his statement recorded u/s 313 Code of Criminal Procedure. stated that his wife Bhagyalata had been to the house of her father & he was not present in the house & that he got the news of her death on reaching the house & he found the doors of the house closed. The accused denied of having any knowledge with regard to the cause of death of his wife. 5. During trial, the prosecution examined 19 witnesses in support of the charges. The accused denied of having any knowledge with regard to the cause of death of his wife. 5. During trial, the prosecution examined 19 witnesses in support of the charges. P.W. 1, Arakhita Jena (informant) is the elder brother of deceased Bhagyalata, who filed the FIR at 6.30 P.M. on 13.08.1996 in presence of Ashok Kumar Jena (P.W.13), who scribed the FIR.P.W.2 Laxmi Jena is the wife of P.W. 1. P.W. 3 Abhimanyu Jena is the brother of the father of deceased Bhagyalata. He stated about the marriage of Bhagyalata with accused Sivaram & that he saw the dead body of Bhagyalata lying inside the house with injuries on her ear, eye & neck. He was also a witness to the inquest, which was conducted by the police on the next date. P.W. 6 Kuna Sahu was a witness to the recovery of lathi (M.O.I), which was recovered on the basis of disclosure statement made by the accused before the I.O. (P.W.17). P.W. 5 Abhimanyu Pradhan came to know about the death of Bhagyalata & saw the dead body with injuries on her eye & neck. P.W. 7, Jogendra Jena came to know about the death of Bhagyalata from the mother-in-law & aunt of accused Sivaram & found the accused on a coconut tree & saw the deceased Bhagyalata lying inside the house with injuries on her neck, ear & eye. He was also a witness to the inquest. P.W. 8, J. Satyajit Prusty stated about the marriage of Bhagyalata, which took place in the year 1996 & he had also seen the accused Sivaram assaulting his wife on the verandah of his house on 13.08.1996. He identified the lathi (M.O.I) used by the accused to assault his wife & stated that she died within 15 minutes to half an hour of the assault. P.W. 8 stated that he contacted the police, who arrived at the spot at about 6 to 7 P.M. & seized the rope (M.O.II) in his presence. P.W. 9 Khadal Bhuyan is a relative of deceased Bhagyalata who found the accused Sivaram assaulting his wife & saw both the deceased & the accused entered inside the room & closed the door. When they opened the door, he saw Bhagyalata was lying dead. P.W. 9 Khadal Bhuyan is a relative of deceased Bhagyalata who found the accused Sivaram assaulting his wife & saw both the deceased & the accused entered inside the room & closed the door. When they opened the door, he saw Bhagyalata was lying dead. P.W. 10 Banchhanidhi Jena, who is a co-villager, stated about the marriage of the accused with the deceased Bhagyalata & that he came to know that the accused had killed his wife. He was a witness to the seizure of the dowry articles, sample soil & blood stained soil by the police. P.W. 11, Kailash Bisoi was an eye witness to the occurrence. He saw the accused assaulting his wife on his own verandah. In the assault, one eye of deceased Bhagyalata was damaged due to bleeding injuries. He also heard the beating sound when the accused closed the door after taking his wife into the house. P.W. 12 is the doctor who examined Gopal Krushna Swain, elder brother of accused & found two simple injuries on the tip of the left index finger & on the right back. P.W. 13 Ashok Kumar Jena scribed the FIR, which was lodged by the informant (P.W.1) at Bhanjanagar Police Station. He was present when the police seized dowry articles & handed it over to P.W. 1 on zima. 6. P.W. 14 Bachha Dakua is the barber who was present at the time of marriage of accused Sivaram with deceased Bhagyalata. P.W. 15 Sujan Naik, who was present at the tea stall of Sania Swain, found the accused taking tea at the stall & came to know from Dasa Swain about the assault by the accused Sivaram to his wife. He also went to the house of the accused & found deceased Bhagyalata lying on the floor. P.W. 16 Gopal Krushna Swain is the elder brother of accused Sivaram who stated about the death of Bhagyalata & that he went to Bhanjanagar Hospital for treatment & after his return, he came to know from the people that Bhagyalata had committed suicide. P.W. 17, is the I.O. of the case, who received the FIR, conducted inquest & sent the dead body for post mortem examination, seized the rope (M.O.II) & basing upon the disclosure statement of the accused seized the lathi (M.O.I) from the house of the accused. P.W. 17, is the I.O. of the case, who received the FIR, conducted inquest & sent the dead body for post mortem examination, seized the rope (M.O.II) & basing upon the disclosure statement of the accused seized the lathi (M.O.I) from the house of the accused. He sent the seized articles to RFSL, for chemical examination & after completion of the investigation, submitted charge sheet against the accused. He also seized the dowry articles & gave the same in zima to the informant (P.W.1). P.W. 18 is the doctor of Bhanjangar Hospital, who conducted the post-mortem examination with the help of another doctor (P.W.19) & found three external injuries & on dissection found the internal injuries. According to P.W. 18, the death was due to asphyxia on account of external pressure on the neck. He examined the weapon of offence, i.e., rope & lathi & opined that the hands were used to press the neck & throat & the other injuries found on the eye brow & face of the deceased were possible due to pressing of lathi. Accordingly, P.W. 18 opined that the death was due to asphyxia by manual strangulation, which was homicidal in nature. 7. It reveals from the evidence of P. Ws 1 & 16 that the accused Sivaram married one Pratibha, daughter of Narahari Pradhan of village Rajakund & after the death of Pratibha, he married Bhagyalata Swain. P. Ws 1,2,3,16 & 17 had stated in their evidence that certain cash, gold ornaments & other articles were given to the accused at the time of his marriage with Bhagyalata which took place in the year 1996 & that Bhagyalata lived happily in her matrimonial home till her death, which took place after six months of her marriage with accused Sivaram. After marriage, Bhagyalata used to go to her father's place to attend certain functions relating to the marriage. In that function, rice & clothings are given to the married daughter at the paternal house, as per the custom. During this period, when Bhagyalata was in the house of her father, the sister of the accused & thereafter his father came to take the key of the almirah belonging to the accused, as certain clothings were inside that almirah & the father was interested to give new clothes & rice to his married daughter, who is also the sister of the accused. On taking the key from Bhagyalata, father of the accused opened the almirah & handed over the same to his daughter. When the accused opened the almirah with the help of duplicate key & found missing of two gold rings, he quarreled with Bhagyalata & challenged her for having handed over the key of the almirah to his father without his consent. 8. On the basis of such evidence on record & in absence of any clear & cogent evidence that the accused was assaulting his wife Bhagyalata for dowry & in absence of any evidence to show that the accused had made any demand for dowry from the family members of his deceased wife, Learned Sessions Judge came to hold that the offences under Sections 498-A/406 Indian Penal Code & Section 4 D.P. Act are not made out. 9. Coming to the charge of murder u/s 302 Indian Penal Code, Learned Sessions Judge found that the witnesses especially P. Ws.8,9 & 11 had categorically stated that the accused Sivaram assaulted his wife Bhagyalata with the help of a lathi (M.O.I) & by bare hands in front of the house, situated on the village Danda. P.W. 1 stated that he went to the house of his sister Bhagyalata when she was preparing cakes. On enquiry he came to know that accused Sivaram already assaulted her on the previous day. On that day, he took his, father to the hospital at about 2 P.M. & on his return from the hospital he came to know about the death of her sister Bhagyalata from one Duryadhan Jena. He went to the house of his sister & found some injury on the right side ear & her right eye was damaged & there were blood marks on her body also. Accused Sivaram advised P.W. 1 to stay there for the purpose of cremation of deceased Bhagyalata. P.W. 1 further stated that the in-laws of his sister told him that she had committed suicide by hanging with a rope. 10. P.W. 2 stated that accused Sivaram was committing theft of coconuts & bananas in the village & when his deceased wife objected, he used to assault her. P.W. 2 further stated that the accused challenged Bhagyalata for handing over the key to his father & that she went with her mother-in-law by taking the clothings & rice from her parents' house. P.W. 2 further stated that the accused challenged Bhagyalata for handing over the key to his father & that she went with her mother-in-law by taking the clothings & rice from her parents' house. They came to know at 5 P.M. that Bhagyalata had died due to assault by accused Sivaram. P.W. 2 came to the house of the accused & found people had gathered at the house of the accused & the doors of the house were closed. The mother-in-law of Bhagyalata opened the door & on entering the house she found the dead body of Bhagyalata. P.W. 3 stated that on 13.08.1996 one child came to their house & informed regarding the death of Bhagyalata. He immediately went to the house of Bhagyalata where several villagers had gathered & from them he heard that Bhagyalata had died due to assault by her husband. He found the dead body of deceased Bhagyalata was lying at the back side of his house, which was their kitchen-cum-dining. The dead body was covered with a saree & her blouse was torn & some of the house-hold articles were lying scattered. He was informed by the mother-in-law of deceased Bhagyalata that due to some quarrel between the accused Sivaram & Bhagyalata, she might have died. 11. P.W. 7 came to know from the mother-in-law & aunt of the accused about the death of Bhagyalata. The mother of the accused was telling that deceased had handed over the key of the almirah & the accused assaulted his wife on account of theft of gold rings & clothes from the said almirah. He went to the house of the accused & found the dead body of Bhagyalata & saw injuries on her ear & her one eye was damaged. He found the saree of the deceased was lying at a certain distance & she was wearing one blouse & saya only. The mother-in law of deceased Bhagyalata brought out a saree & covered the dead body. At that time, the police arrived & the wearing apparels of the deceased were handed over to the police after post-mortem examination, which were seized. 12. P.W. 10 returned to the village at 9 P.M. & came to know that accused Sivaram had killed his wife. He went to the spot & found deceased Bhagyalata lying in the middle of her house. 12. P.W. 10 returned to the village at 9 P.M. & came to know that accused Sivaram had killed his wife. He went to the spot & found deceased Bhagyalata lying in the middle of her house. He stated about the seizure of blood stained soil & sample soil & the dowry articles. P.W. 13 on hearing about the death of Bhagyalata went to the house of the accused & found Bhagyalata lying dead inside her house. At that time, the informant (P.W.1) arrived & they went to the Bhanjanagar Police Station, where he scribed the FIR/as detected by P.W. 1, which was lodged before the police. 13. P.W. 15 stated that Gopal Gouda is the elder brother of accused Sivaram & they were staying in one house. While he was taking tea at the tea stall of Sania Swain, the accused came to the stall to take tea & then he went to the house of his mother-in-law. Thereafter, Dasa Swain of that village came to the tea stall & told him (P.W.15) that while the accused was assaulting his wife Bhagyalata, his elder brother Gopal Gouda intervened & the accused had chewed the finger of his elder brother, for which, he went to the hospital & the accused Sivaram after assaulting & killing his wife went away from the house. 14. From out of the witnesses examined by the prosecution in support of the charge, P. Ws. 8, 9 & 11 are the eye witnesses to the occurrence. P.W. 8 stated about the marriage of the accused & Bhagyalata, which took place in the year 1996 at village Badakodanda. He stated that Bhagyalata died in the house of the accused on 13.08.1996 & he saw the accused assaulting his wife on the verandah of his house by means of a lathi & he identified the same as M.O.I.P.W.8 further stated that the accused Sivaram assaulted his wife as his father took the key of the almirah from the deceased & that Bhagyalata died within 15 minutes to half an hour of the assault. P.W. 9 stated that he found accused Sivaram assaulting his wife by means of a lathi, as a result of which, she sustained injuries on the right side ear & eye & the incident took place on the verandah of the house of the accused. P.W. 9 stated that he found accused Sivaram assaulting his wife by means of a lathi, as a result of which, she sustained injuries on the right side ear & eye & the incident took place on the verandah of the house of the accused. He further stated that the deceased & the accused went inside the room & closed the door & when the door was opened, he found Bhagyalata lying dead inside the house. P.W. 11 stated that he found accused Sivaram assaulting his wife on the verandah of his house by means of his hand, as a result of which, one eye of Bhagyalata was damaged due to bleeding injuries. When people gathered, the accused took the injured Bhagyalata inside the house. He heard beating sound from the house & when the people gathered & shouted, the mother of the accused opened the door. P.W. 11 further stated that when he entered inside the house, he found Bhagyalata lying dead. 15. The doctor (P.W.18) found internal injuries & there was no fracture of hyoid bone. Both the lungs were congested & there was injuries to both the eyes & contusion to the neck muscles. No fracture or dislocation was detected. P.W. 18 further found blood stained chest, back & both fore-limbs present & bruises were present in front of the right ear & front of the right eye. According to P.W. 18, the death was due to asphyxia because of external pressure on the neck. He opined that manual compression of the neck was the reason for the death of Bhagyalata. P.W. 18 also found marks of glass necklace on the neck, which was due to pressing of the neck by hand & all the injuries were ante-mortem in nature. P.W. 18 further opined that the injuries found on the eyes are possible by pressing of lathi (M.O.I.) & those bruises could not be self inflicted. 16. P.W. 17 is the I.O., who stated that the accused Sivaram while in custody stated before him that he had concealed the lathi (M.O.I) in side his house & led him to that place along with the witnesses & gave recovery of the lathi, which was used by him for commission of murder of Bhagyalata. The accused had concealed the lathi in a corner of the room & gave recovery of the same. 17. The accused had concealed the lathi in a corner of the room & gave recovery of the same. 17. Considering the evidence of the witnesses including the eye witnesses, i.e. P. Ws. 8,9 & 11 & the medical evidence, Learned Additional Sessions Judge came to find that the accused Sivaram had applied both his hands to cause the death of Bhagyalata by strangulation, by pressing the neck of the deceased with force & therefore, the accused had the intention to cause death of deceased Bhagyalata. Accordingly, Learned Sessions Judge came to hold the accused guilty of offence u/s 302 Indian Penal Code & convicted him thereunder. 18. Learned Counsel for the accused-Appellant submits that there being material contradictions & inconsistencies in the evidence of the witnesses examined by the prosecution in support of the charge, the same cannot be said to be convincing for the purpose of convicting the accused for murder of Bhagyalata. In this regard, it is submitted that as no motive or any intention has been attributed to the accused for committing the murder of his wife & admittedly the accused assaulted his wife in a fit of anger, on the spur of the moment, without any pre-meditation or any intention to cause death, the conviction u/s 302 Indian Penal Code is not proper & justified & at best it may be a case u/s 304 Part-II Indian Penal Code. It is submitted that the accused-Appellant is in custody for last 13 years. 19. On a perusal of the evidence on record including the evidence of the eye witnesses i.e. P. Ws 8, 9 & 11 as well as the evidence of the informant (P.W.1), it is seen that the consistent case of all the witnesses is that the accused had quarreled with his wife because of her handing over the key of the almirah to his father & during the quarrel, in a fit of anger, the accused assaulted his wife & pressed his neck, as a result of which she died. From this evidence it is abundantly clear that the act of the accused was on the spur of the moment & he had no intention to cause bodily injury to his wife, which was likely to cause her death, even though he might have had knowledge that the injury may lead to death. From this evidence it is abundantly clear that the act of the accused was on the spur of the moment & he had no intention to cause bodily injury to his wife, which was likely to cause her death, even though he might have had knowledge that the injury may lead to death. None of the witnesses have stated, regarding the existence of any dispute or difference or even any ill-feeling between the accused & the deceased prior to the incident & admittedly there was no motive or any pre meditation on the part of the accused to cause death of his wife. The entire incident appears to have taken place in the heat of passion & on the spur of the moment, without any preconceived plan or intention to cause death of Bhagyalata. 20. In view of such evidence on record, we are of the considered view that even if the accused had no intention to cause such bodily injury to his wife Bhagyalata, as was likely to cause her death, but he had the knowledge that such injury may cause her death. We therefore feel that it would be just & proper, in the interest of justice, to modify the conviction of the accused-Appellant u/s 302 Indian Penal Code to one u/s 304 Part-II Indian Penal Code. 21. Accordingly, the conviction of the accused-Appellant u/s 302 Indian Penal Code is set aside & instead he is convicted u/s 304 Part-II Indian Penal Code & is sentenced to the period of imprisonment already gone by him. The accused-Appellant shall be set at liberty forthwith, if his detention is not required in any other case. 22. The Criminal Appeal is accordingly disposed of. A.S. Naidu, J. 23. I agree.