JUDGMENT : S.C. Parija, J. - This criminal appeal is directed against the judgment dated 07.06.2004 passed by the Adhoc Addl. Sessions Judge, Jeypore, in Criminal Trial No. 72 of 2002, holding the accused-Appellant guilty of offence u/s 302 Indian Penal Code & convicting him thereunder. 2. The case of the prosecution initiated on the basis of the FIR lodged by the widow of the deceased is that, on 15.07.2001 at about 7.30 a.m. in the morning, the accused by climbing the roof of the house of the deceased was trying to remove asbestos sheets. At this juncture, the deceased protested & asked him not to remove the same. The accused suddenly jumped from the roof & assaulted the deceased with a knife on different parts of his body, as a result of which the deceased fell down sustaining bleeding injuries. The wife of the deceased & his minor son, who were present at the spot raised hullah & on hearing the same, the people residing near by gathered at the spot. The accused after assaulting the deceased ran away holding the knife & some villagers chased him. Consequent to such assault, the deceased died at the spot. On receipt of such report, the same was registered as Damanjodi P.S. Case No. 64 of 2001 & investigation was taken up. During investigation, inquest was held over the dead body & the same was sent for autopsy. Statements of witnesses were recorded by the I.O. & sample earth, blood-stained earth & other materials were seized. The I.O. also seized the wearing apparels of the accused & his nail clippings, arrested the accused & remanded him to custody. The weapon of offence (knife) seized during investigation was sent to the doctor for opinion & the seized articles were sent for chemical examination. After completion of investigation, charge sheet was submitted against the accused. 3. The plea of the defence was one of complete denial & that he has been falsely implicated in the case. 4. The prosecution examined 9 witnesses in support of the charges, out of which, P.W. 7 is the doctor, who conducted the post mortem on the dead body & P.W. 9 is the I.O.P. Ws. 1 & 2 are the minor son & widow of the deceased, who were present at the spot & are eye-witnesses to the occurrence. 4. The prosecution examined 9 witnesses in support of the charges, out of which, P.W. 7 is the doctor, who conducted the post mortem on the dead body & P.W. 9 is the I.O.P. Ws. 1 & 2 are the minor son & widow of the deceased, who were present at the spot & are eye-witnesses to the occurrence. P.W.3 is the immediate neighbour of the deceased, who reached the spot immediately after the occurrence. He is also a witness to the inquest & seizure. P.W.6 is the elder brother of the accused & the deceased & P.W.8 is the scribe of the F.I.R.P. Ws. 4 & 5 are the persons, who chased the accused while he was running away with the knife & with their assistance, the accused was apprehended by the police. 5. The doctor (P.W. 7), who conducted the post mortem examination, stated in his evidence that he found the following external injury on the person of the deceased: (i) Stab injury 1"- red in colour with sharp margins over the left chest, 3" from the left nipple on the lateral side. Liquid blood was pouring out of the wound. (ii) Stab injury 1" long x 1/2" wide x 2" depth red in colour with sharp margins over left deltoid area 4" from shoulder on the lateral side. (iii) Stab injury 1" long x 2" depth with sharp margins & red colour on the inner side of left arm close to axilla, 3" from shoulder. (iv) Stab injury 1/2" long x 1/2" wide with sharp margins- blood clot was coming out of the injury, over the xiphysternum. (v) Laceration of 1/4" x 1/2" size, black in colour, 3" above the elbow joint over inside of right arm. On dissection he found corresponding internal injury to injury No. i, i.e., internal damage to left pleural cavity & injuries of 1" long & 2" depth on the left lung of the deceased. P.W. 7 opined that the injuries were ante mortem in nature & the cause of death was due to excessive loss of blood due to injury No. i. He found injury Nos. (i), (iii) & (iv) to be on the vital parts of the body & opined that the external injuries were possible by the weapon of offence, i.e., knife (M.O.I), which had been seized by the I.O. from the spot. 6. (i), (iii) & (iv) to be on the vital parts of the body & opined that the external injuries were possible by the weapon of offence, i.e., knife (M.O.I), which had been seized by the I.O. from the spot. 6. The inquest conducted by the I.O., as per Ext. 1, indicated that the deceased sustained severe bleeding injuries on different parts of the body. On the basis of such evidence on record, Learned Trial Court came to hold that the death of the deceased was homicidal in nature. 7. P.W. 1 who is the minor son of the deceased & is an eye witness to the occurrence, stated in his evidence that on the date of the occurrence, the accused climbing the roof of their house, was trying to remove asbestos sheets, at that moment, his deceased father protested & the accused suddenly jumped from the roof & stabbed the deceased with a knife on different parts of his body. In his cross-examination, P.W. 1 stated that the accused after stabbing his father, attempted to assault him & out of fear, he ran away from the spot. 8. P.W. 2 who is the widow of the deceased & is an eye-witness to the occurrence fully supported the prosecution story. She stated that her husband was given a job at NALCO & the house given by the NALCO was given to the accused. P.W. 2 further stated that the accused was always giving threats to her husband & she identified the weapon of offence, i.e., knife (M.O.I), by which the accused assaulted the deceased in her presence. In her cross examination, P.W. 2 stated that she came out of the house, following her husband, on hearing sound from the roof & when her husband asked the accused as to why he was removing the asbestos sheets, the accused suddenly jumped to the ground & brought out a knife from his pant pocket & stabbed the deceased on different parts of his body. The deceased sustained severe bleeding injury & after the assault, the accused ran away from the spot, with the knife. The deceased, on sustaining bleeding injuries died at the spot. P.W. 2 further stated that he & his minor son (P.W. 1) were present at the spot & had seen the assault. The deceased sustained severe bleeding injury & after the assault, the accused ran away from the spot, with the knife. The deceased, on sustaining bleeding injuries died at the spot. P.W. 2 further stated that he & his minor son (P.W. 1) were present at the spot & had seen the assault. She further stated that the F.I.R. was scribed by P.W. 8 as per her oral version & that the villagers chased the accused & recovered the knife from him, which was brought & kept near the dead body of her husband. 9. P.W.3 is an immediate neighbour of the deceased, who arrived at the spot after the occurrence & heard from P.W. 2 that the accused had killed her husband. P.W. 4 is a co-villager, who claims to have seen the accused running away with a knife & some villagers were chasing him & he along with others joined the villagers & caught the accused at village Kudumulugam. P.W. 4 further stated that the accused attempted to assault them with the knife (M.O.I) & that they caught hold of the hands of the accused & the knife fell down from his hand. The accused escaped from their clutches & picked up stones to assault them & so they came back with the knife & kept the same near the dead body of the deceased, which was subsequently seized by the police. P.W. 4 further stated that he assisted the police in searching for the accused & in his presence, the accused was apprehended, while he was hiding in a Nala of village Kudumulugam. 10. The evidence of P. Ws.3, 4 & 5 clearly revealed that the accused was running away with a knife, which was recovered from him & that the accused was apprehended by the police, in their presence. Their deposition lends corroboration to the testimony of the eye-witnesses, i.e., P. Ws. 1 & 2. 11. P.W.6 is the elder brother of the accused & the deceased, who stated in his evidence about the conduct of the accused. He stated that he was offered a job in NALCO but as he was an illiterate, he had given the job to his deceased brother. The house given by the NALCO was given to the accused. P.W. 6 further stated that the deceased was staying separately by constructing a new-house, where the occurrence took place. He stated that he was offered a job in NALCO but as he was an illiterate, he had given the job to his deceased brother. The house given by the NALCO was given to the accused. P.W. 6 further stated that the deceased was staying separately by constructing a new-house, where the occurrence took place. He further stated that the accused was taking liquor regularly & was not doing any work & roaming around with a knife. P.W. 6 further stated that the accused was always demanding money from the deceased & was giving him threats. 12. The Chemical Examination Report (Ext. 14) revealed that the knife (M.O.I) seized by the police from the spot contained human blood. Similarly the wearing apparels of the accused also contained human blood. 13. On the basis of the evidence on record, both oral & documentary, & the opinion of the doctor (P.W. 7) with regard to the nature & extent of injury on the vital parts of the body of the deceased, which resulted in his death, Learned Trial Court came to hold the accused guilty of committing murder of the deceased & accordingly convicting him for the offence u/s 302 Indian Penal Code. 14. Learned Counsel for the accused-Appellant has made a feeble attempt to shake the veracity of the oral evidence of the eye-witnesses, i.e., P. Ws.1 & 2 as well as the evidence of P. Ws. 3 to 6, on the plea that the same are not free from contradictions & inconsistencies. Learned Counsel further submits that as the sequence of event, as narrated by the witnesses clearly goes to show that the accused was on the roof top & suddenly jumped to the ground & assaulted the deceased with the knife, such act cannot be said to be pre-planned or pre-meditated. It is further submitted that the evidence of other brother (P.W.6) reveals that the accused was habituated in taking liquor, the act of the accused can be said to have been committed under the influence of liquor & on the spur of the moment without any motive or intention. Accordingly it is forcefully submitted by the Learned Counsel for the accused-Appellant that at best the same may amount to an offence u/s 304 Part II Indian Penal Code & not a case u/s 302 Indian Penal Code. Accordingly it is forcefully submitted by the Learned Counsel for the accused-Appellant that at best the same may amount to an offence u/s 304 Part II Indian Penal Code & not a case u/s 302 Indian Penal Code. It is further submitted that the accused is in custody for more than 8 years, since the date of the occurrence. 15. On an analysis of the oral evidence of the eye-witnesses, i.e., P. Ws. 1 & 2, as well as the evidence of P. Ws. 3 to 6, the same clearly goes to show that the accused had climbed the roof of the house of the deceased & was trying to remove the asbestos sheets & when the deceased questioned him as to why he was removing the asbestos sheets, the accused suddenly jumped from the roof & assaulted the deceased with a knife, which he was carrying in his pocket. The evidence of the other brother (P.W.6) goes to show that the accused was used to taking liquor & was not doing any work & was roaming around with a knife. The combined reading of the oral evidence of P. Ws. 1 to 6 would show that the accused had assaulted the deceased suddenly after jumping from the roof of the house. Therefore, we find that the assault by the accused was not pre-meditated & further the prosecution has failed to establish any strong motive for the accused to commit the murder of the deceased, who is admittedly his own brother. The act of the accused appears to have been committed on the spur of the moment & possibly when he was under the influence of liquor & in a heat of passion. However, keeping in view the nature & extent of injuries caused by the accused with the knife, on the body of the deceased, which resulted in his immediate death, we are of the considered view that the interest of justice would be best served, if the conviction of the accused u/s 302 Indian Penal Code is modified to one Section 304 Part I Indian Penal Code. 16. In view of the above, the conviction of the accused-Appellant u/s 302 Indian Penal Code is set aside & instead the accused is convicted u/s 304 Part I Indian Penal Code & is sentenced to the period of imprisonment already undergone by him. 16. In view of the above, the conviction of the accused-Appellant u/s 302 Indian Penal Code is set aside & instead the accused is convicted u/s 304 Part I Indian Penal Code & is sentenced to the period of imprisonment already undergone by him. The accused-Appellant shall be set at liberty forthwith, if his detention is otherwise not required in any other case. 17. The Criminal Appeal is accordingly allowed to the extent indicated above. A.S. Naidu, J. 18. I agree. Appeal allowed. Final Result : Allowed