JUDGMENT : Pradip Mohanty, J. - The Appellant has been convicted u/s 302, IPC and sentenced to undergo imprisonment for life by the Sessions Judge, Koraput at Jeypore by his judgment and order dated 29.04.1999 passed in Sessions Case No. 131 of 1997 2. The prosecution case in brief is that on 01.02.1997 the deceased had been to Dayanidhiguda to work as a labourer on the Railway line along with Suna Paraja, Jagannath, Kalia, Ganju, Shiba and Kanda. In the evening, they went to the house of one Sukaldei of village Bhitar Margara with a view to stay there as they thought that night would fall if they proceed to their village. They took meal in the house of Sukaldei. After taking meal, the deceased, Suna, Ganju and Jagannath came out of the house while others were taking dinner. At that time, deceased started preparing tobacco (khaini). The accused came there and asked the deceased to supply Khaini. When he refused, the accused got annoyed and abused him in filthy language. The accused then went to his house and again came there by covering his body with a Chadar. Suddenly gave a blow with a knife to the right side chest of the deceased and fled away from the spot. The deceased fell down on the ground and after some time succumbed to the injuries. P.W.1 went to Koraput Sadar police station and reported the incident orally which was reduced to writing by the Officer-in-charge. The same was treated as FIR, investigation was taken up and on its completion, charge-sheet was filed against the accused u/s 302, IPC. 3. The plea of the Appellant is complete denial of the allegation. 4. In order to prove its case, prosecution has examined as many as 8 witnesses including the doctor and the I.O. and exhibited 15 documents, but the defence examined none. 5. The learned Sessions Judge, who tried the case, by his judgment dated 29.04.1999 convicted the Appellant u/s 302, IPC and sentenced him to undergo imprisonment for life basing upon the evidence of the eye witnesses and the recovery of weapon of offence which was stained with blood. 6. Miss. Das, learned Counsel Appellant for the Appellant vehemently contends that there is absolutely no material to convict the Appellant u/s 302, IPC. She specifically contends that P.Ws.2, 4 and 5 are not reliable, as they have not seen the occurrence. 6. Miss. Das, learned Counsel Appellant for the Appellant vehemently contends that there is absolutely no material to convict the Appellant u/s 302, IPC. She specifically contends that P.Ws.2, 4 and 5 are not reliable, as they have not seen the occurrence. There is no independent corroboration to the evidence of P.W.1. P.W.3 is also not a reliable witness. Prosecution has failed to establish the motive behind the killing of the deceased. Recovery of knife from the accused has not been proved by the prosecution. 7. Mr. Mohapatra, learned Counsel appearing for the State, supports the conviction and states that the evidence of P.Ws.1 and 3 is clear, cogent and convincing. There is nothing to disbelieve the evidence of these witnesses. It is the evidence of P.W.8, the Investigating Officer, that he seized the knife (M.O.I) under Ext.5, which was lying on the spot. The said weapon was stained with blood. 8. Perused the L.C.R. P.W.1 is the informant and a witness to the occurrence. He in his deposition has stated that he himself, Jagannath, the deceased, Kalia, Ganju, Shiba and Kanda had been to Dayanidhiguda to work as labourers on the Railway line. They went to village Bhitara Mangara to stay in the house of Sukaldei in the evening as they felt that night would enter if they proceed to their village. They took their meals in the house of Sukaldei. The deceased, Gaju, Jagannath and he himself came to the spot after taking their meals when others taking dinner. The deceased was preparing tobacco (khaini). The accused came there and asked the deceased to supply khaini (tobacco). When the deceased refused, the accused got annoyed and went to his house. After some time, accused came with a knife by covering his body with a Chadar and gave a blow to the right chest of the deceased. The knife, which was pierced into the chest, was removed by the deceased. The deceased then fell down saying "Mari Gali". On the following morning, he reported the matter to the police. There is nothing to disbelieve the evidence of this witness with regard to assault. P.W.2 is another witness who was present at the time of occurrence. He has corroborated the statement of P.W.1. P.W.1 has also stated about the presence of this witness. On the following morning, he reported the matter to the police. There is nothing to disbelieve the evidence of this witness with regard to assault. P.W.2 is another witness who was present at the time of occurrence. He has corroborated the statement of P.W.1. P.W.1 has also stated about the presence of this witness. This witness (P.W.2) admits that P.W.1, he himself and other witnesses were present at the time of assault. Nothing has been elicited by way of cross-examination to discard his evidence. P.W.3 is another witness who corroborated the statements of P.Ws.1 and 2 in every material particular. He has stated that he was sitting at a gap of 2 cubits from the deceased at the relevant time. He specifically stated that accused gave a knife blow to the chest of the deceased and thereafter fled away from the spot. Nothing has been elicited by way of cross-examination by the defence to discredit his testimony. This witness has also admitted about the demand of khaini by the accused and refusal by the deceased. P.W.4 has corroborated the statement of P.W.2 that food was supplied by Sukaldei that the deceased refused to supply khaini on being demanded by the accused; and that the accused went to his house, returned with a knife, dealt a knife blow on the chest of the deceased and fled away. But in his cross-examination, this witness has admitted that at the time of occurrence, he was on the road running by the side of the spot. He has also admitted that he had not stated before the I.O. about the demand of khaini and the blow given by the accused with the knife. Thus, his statement before the police does, not tally with his evidence before the Court and he has tried to develop the prosecution case. P.W.5 is Sukaldei on whose verandah the occurrence took place. She specifically stated that P.Ws.1, 2, 3 and 4 went outside and the deceased started preparing khaini. When the deceased refused to supply khaini, the accused got annoyed, brought a knife from his house and dealt a blow to the deceased. In her cross examination, however, she admits that by the time she arrived at the spot, the accused was present and the deceased was lying unconscious. This part of evidence shows that she is a post occurrence witness and she had not seen the actual assault. In her cross examination, however, she admits that by the time she arrived at the spot, the accused was present and the deceased was lying unconscious. This part of evidence shows that she is a post occurrence witness and she had not seen the actual assault. P.W.6 is a witness to the inquest. P.W.7 is the doctor who conducted autopsy over the dead body of the deceased and found one lacerated wound, spindle shaped, measuring 11/2" long and 1/2" wide situated in the second intercostals space on the right side in the mid-clavicular line. He opined that the death of the deceased was due to stab wound in the chest causing severe haemorrhage resulting in shock. The injuries were ante-mortem in nature. P.W.8 is the I.O. who registered the case, took up investigation, examined the witnesses and ultimately filed charge-sheet against the accused for commission of offence u/s 302, IPC. In his cross-examination, he admitted that P.W.4 had not stated before him that the accused came to the deceased and asked for khaini; and that the deceased refused to supply khaini, that the accused abused him, went towards his house, again came to the deceased covering his body with a Chadar, suddenly dealt a knife blow on the chest of the deceased and went away. From the evidence of the I.O. it reveals that P.W.4 is not an witness to occurrence. 9. Scanning the entire evidence, particularly that of P.Ws.1, 2 and 3, this Court arrives at the conclusion that the accused had no intention to kill the deceased. P.W.3 in his evidence has admitted that due to hot exchange of words and sudden provocation the accused gave a knife blow to the chest of the deceased. The circumstance under which the incident took place would clearly negate the proposition that the accused had the intention to kill the deceased. In fact, the incident occurred instantaneously. The accused gave only one blow to the chest of the deceased and the medical evidence supports existence of one blow. The accused and the deceased, are tribal people, the quarrel was trivial in nature and in such trivial quarrel the tribal people use knife. Keeping all these factors in mind and applying the ratio laid down in Gobinda Oadia ' Dhana v. State of Orissa (2008) 40 OCR 58; and Jagtar Singh Vs. The accused and the deceased, are tribal people, the quarrel was trivial in nature and in such trivial quarrel the tribal people use knife. Keeping all these factors in mind and applying the ratio laid down in Gobinda Oadia ' Dhana v. State of Orissa (2008) 40 OCR 58; and Jagtar Singh Vs. State of Punjab, ; this Court comes to the conclusion that the act committed by the Appellant does not come u/s 302, IPC, but it comes u/s 304, Part-II, IPC. 10. For the reasons stated above, this Court allows the appeal in part, sets aside the impugned judgment convicting the Appellant u/s 302, IPC and sentencing him to undergo imprisonment for life, and instead convicts the Appellant u/s 304 Part-II, IPC and sentences him to Imprisonment for the period already undergone. L. Mohapatra, J. 11. I agree. Final Result : Allowed