JUDGMENT On 18.1.2013, the appeal was heard and judgment dictated in Court. Appeal was allowed in part converting the offence under Section 302, I.P.C. to one under Section 304, Part-I I.P.C. and modifying the sentence. Release order communicated. The reasons of the judgment follow : 2.This appeal has been filed by the Appellant challenging the judgment and order of the learned Sessions Judge, Sundargarh passed in S.T. No.128 of 1999 convicting the appellant for commission of offence under Section 302 of I.P.C. and sentencing him to imprisonment for life and to pay a fine of Rs.5,000, in default, to undergo further period of imprisonment for two years. 3.The case of the prosecution is that the appellant-Jalu Majhi had married Gurubari Majhi, who is the mother of Phultuli Majhi. Phultuli happens to be the widow of Dinu Majhi. The Appellant and his wife were residing in a hut standing near the hurt of the deceased-Dinu Majhi. On 17.11.1998 evening there was quarrel between Dinu Majhi and his wife inside their hut. At that time, Dinu Majhi’s father-in-law, the appellant reached near the entrance door of his house being armed with a bow and an arrow and shot the arrow, which pierced the chest of the deceased Dinu Majhi, who sustained grievous injury and succumbed to the same. Dinu’s wife Phultuli snatched away the bow from the hands of the appellant. Thereafter the appellant ran away to his hut, collected his belongings and absconded. Phultuli narrated this incident to others and on the next day i.e. on 18.11.1998 Sonu Majhi, who happens to be the brother of the deceased proceeded to Lephripara Police Station and lodged an F.I.R., which was registered as Lephripara P.S. Case No.92 of 1998. Thereafter investigation was taken up and on completion of investigation, charge sheet was submitted against the appellant for commission of offence under Section 302 of I.P.C. The accused took the plea of denial and false accusation. 4.The prosecution in order to prove its case examined 14 witnesses. Out of whom P.Ws.1, 5 and 6 were the eyewitnesses to the occurrence. P.W.2 is the informant and P.W.4 is the Chowkidar of village-Karadega. P.Ws.3 and 10 were post occurrence witnesses. P.Ws.7, 9, 12 and 8 were witnesses to the seizures made by the Investigating Officer in course of investigation. P.W.11 was the Doctor, who conducted post mortem examination on the dead body of the deceased. P.W.2 is the informant and P.W.4 is the Chowkidar of village-Karadega. P.Ws.3 and 10 were post occurrence witnesses. P.Ws.7, 9, 12 and 8 were witnesses to the seizures made by the Investigating Officer in course of investigation. P.W.11 was the Doctor, who conducted post mortem examination on the dead body of the deceased. P.W.13 was the Investigating Officer. Neither the defence has examined any witness nor led any document into evidence to substantiate his claim. 5.The Trial Court relying on the evidence of three eyewitness P.Ws.1, 5 and 6 as well as the post occurrence witness-P.W.7, found the appellant guilty for commission of offence under Section 302 of I.P.C. and convicted him thereunder. 6.Mr. Parida, learned counsel appearing for the appellant referring to the evidence of P.Ws.5 and 6, who were eyewitnesses to the occurrence submits that they had not seen the assault on the deceased by the appellant. He further submits that P.W.5 categorically in her cross-examination stated that she had not seen her grandfather shooting the arrow but she had seen him running away from the spot after the arrow had hit her father. She also stated that her mother was cooking food at the time of occurrence and it was so dark unless somebody comes near, it was not possible to identify him. Though P.W.5 is aged about nine years, before her examination the Trial Court observed as follows : “This witness is a child. On asking her I found that she is a student of Class-III, Karedega U.P. School. I found her to be able to understand questions put to her and give rational answers.” In view of the above observation made by the Trial Court, the evidence of P.W.5 cannot be brushed aside. 6.1 Mr. Parida, Learned Counsel for the appellant-submits that P.W.6, who is the mother of P.W.5 and wife of the deceased was also examined by the prosecution as eyewitnesses. P.W.6 admitted that they had good relationship with the appellant and at the time of occurrence she was cooking food in one corner of the room and the deceased was sitting on the floor at the middle of the room and her daughter was standing near the deceased. The door was facing middle of the room. It was not possible to see if anybody who was going or standing by that door from the place she was cooking. Mr. The door was facing middle of the room. It was not possible to see if anybody who was going or standing by that door from the place she was cooking. Mr. Parida, further submits that in view of the specific evidence of P.Ws.5 and 6, the stand of the prosecution that those two witnesses were eyewitnesses cannot be accepted. However, they can be treated as post occurrence witnesses as they had not seen the Appellant shooting the arrow but they were present at the spot and the appellant ran away from the spot after the occurrence. 7.Learned Addl.Government Advocate submits that from the evidence of the witnesses examined by the prosecution clearly point at the guilt of the appellant giving no room to entertain a doubt and therefore, the Trial Court was justified in holding the appellant guilty of charges on the basis of such evidence. 8.We have carefully examined the evidence of all the fourteen witnesses examined on behalf of the prosecution. The prosecution has proved that the death is homicidal and cause of death is due to the injury inflicted on the deceased as per the postmortem report. The death is homicidal and the appellant is only the person whom P.Ws.5 and 6 saw running away after shooting the arrow and from whom the bow was seized. The appellant belongs to Scheduled Tribe, which is clear from the judgment of the learned Sessions Judge. The appellant is a resident of Kardega of Lephripada P.S. in the district of Sundargarh, which is an interior part of the State and the inhabitants of that area are tribal. It is obvious that such people are of different mindset and they commit offences at the spur of the moment. Hearing the dispute between the deceased and his wife, the appellant came to the spot and at the spur of the moment commit the offence to protect the daughter (wife of the deceased). Therefore, there was sufficient reason for the accused to become angry which provoked him to commit the offence. There was no previous enmity between the accused and deceased. The accused and deceased belongs to one community. Therefore, there was sufficient reason for the accused to become angry which provoked him to commit the offence. There was no previous enmity between the accused and deceased. The accused and deceased belongs to one community. 9.Taking into consideration the decision in the case of Bishnu Charan Das v. The State of Orissa reported in 1985 (1) Crimes 1069 wherein the Court held that the intention of the appellant to kill was not clear or proved and convicted the offence committed by he appellant under Section 302 of I.P.C. to one under Section 304, Part-II I.P.C., we are of the view that the said decision is applicable to the facts and circumstances of the present case. Accordingly, we allow this appeal in part and convert the offence of Section 302 of I.P.C. committed by the appellant to one under Section 304, Part-I of I.P.C. The impugned judgment and order of conviction dated 22.1.2004 passed by the learned Sessions Judge, Sundargarh in S.T. No.128 of 1999 convicting the appellant-Jalu Majhi for commission of offence under Section 302 of I.P.C. is modified to one under Section 304, Part-I of I.P.C. and the appellant is sentenced to imprisonment accordingly. The appellant is in custody since 1998, we, therefore, direct that he be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed in part.