JUDGMENT : D. Dash, J. - The appellant from inside the jail has called in question the judgment of conviction and sentence recorded against him by the learned Sessions Judge, Keonjhar in S.T. Case No. 36/2004 convicting him for offence under Section 304-I, IPC and sentencing him to undergo rigorous imprisonment for a period of 10 years. 2. Shortly stated, the prosecution is that on 26.10.2003 deceased Banku Munda had gone to the house of his father in law and his wife Nisha had also accompanied him to her father's house. The further case of the prosecution is that Banku returned house in the evening with injuries on his person and disclosed to have been assaulted by his parent in laws and shortly thereafter lost his consciousness. The disclosure is said to have been made by the deceased on return to his own village Tando from his father in law's house situated at village Dumuria and that is before his elder brother when it was around 8.00 P.M. Samara Munda, the brother of the deceased and others took Banku to the hospital for treatment where he was declared dead. Information was lodged by that Samara at the concerned police station which triggered investigation. The case having been initially registered against the parent in laws of the deceased, later on charge sheet was submitted also against the wife of the deceased. All of them faced the trial for commission of offence under Sections 302/ 34, IPC. 3. During trial prosecution all together examined 7 witnesses and proved some documents such as F.I.R. Ext.3, inquest report Ext.4, Post Mortem report Ext.5, C.E. report Ext.12 over and above the seizure list relating to seizure of incriminating articles. P.W.1 is the informant and younger brother of the deceased, before whom the deceased is said to have made the declaration shortly prior to his death as regard authorship of the injuries on his person. P.W.2 is a neighbour of appellant. Mother of the deceased has been examined as P.W.3. Gramarakhi of the village before whom P.W.1 had first orally reported the matter has been examined as P.W.5. The doctor conducting autopsy has been examined as P.W.6 and 7 is the investigating officer of this case. P.W.4 is a witness to the seizure of that piece of wood and wearing apparels of the deceased. Defence has examined none despite of opportunity being given. 4. The doctor conducting autopsy has been examined as P.W.6 and 7 is the investigating officer of this case. P.W.4 is a witness to the seizure of that piece of wood and wearing apparels of the deceased. Defence has examined none despite of opportunity being given. 4. Trial Court on analysis of oral evidence as well documents proved from the side of the prosecution and the evidence of the doctors has ultimately arrived at a conclusion of commission of offence punishable under Section 304-I, IPC by the appellant. So he has been convicted and sentenced thereunder as stated above. Wife of the present appellant while being found guilty for commission of offence under Section 323, IPC in causing simple hurt to the deceased has been convicted thereunder and has been sentenced to undergo rigorous imprisonment for a period of one month. However, the wife of the deceased has been acquitted. This appeal is concerned with the conviction recorded against the appellant and the sentences passed thereunder as stated above. 5. Learned counsel for the appellant submits that the evidence relating to the oral dying declaration said to have been made by the deceased before P.W.1 ought not to have been believed and P.W.1 under the circumstances could not have been said to be a truthful witness and basing on his testimony the Court below erred in law in finding out that it is the appellant who had assaulted the deceased ultimately resulting his death. It is also his submission that the Court below has not gone to critically test the evidence of P.W.1 and others in their proper perspective. As they are highly interested witnesses and when their evidence is scrutinised with care and caution as to ought to have been also in case of the oral dying declaration, the prosecution can be found to have failed to establish the role of the appellant as assigned. It is his alternative submission that the trial Court in the facts and circumstances of the case and taking into consideration the relevant factors instead of holding the appellant guilty of commission of offence under Section 304-I, IPC, ought to have convicted the appellant for commission of offence under Section 304-II, IPC and accordingly, the order of sentence would have been so passed. Learned Additional Government Advocate while supporting the finding of the trial Court contents that the evidence of the prosecution witnesses have remained unshaken. It is his submission that considering the back ground from which the witnesses hail, their status in the society and looking at the community to which they belong, their evidence can be said to be wholly worthy of credence when there remains no iota of material to doubt their versions. Therefore, he submits that the trial Court did not commit no mistake in rendering the factual finding that the appellant was the author of the injury on the head of the deceased, which has caused the death in the ultimatum. He also refutes the submission of the learned counsel for the appellant as regards the alteration of conviction for offence under Section 304-II, IPC and reduction of sentence consequent thereto. 6. With the above rival submission now it becomes necessary to go through the evidence of prosecution witnesses, in scrutinizing them to judge the sustainability of the finding rendered by the trial Court as also the conviction and the choice of appropriate sentence. The evidence remains that the deceased came to the house with injury on his person and then fell down on the ground where-after taken to hospital where he was declared dead. The inquest over the dead body was held and report prepared under Ext.4 noting the visible injuries on the person of deceased i.e. on the head and other parts of the body of the deceased. Evidence of P.W.6 the doctor conducting the autopsy over dead body stands on the score that he had noticed lacerated injury on the scalp with swelling on left temporal region besides bruise over the right chest and left upper back. It is also his evidence that on dissection, one hematoma was found on the temporal region of the scalp and his positive evidence is that death was due to that injury by causing pressure on the brain matter. He has further deposed that the weapon like wooden lathi M.O.-1 can cause such injury. Such evidence has gone unchallenged and there also remains no basic infirmity therein. Therefore death of Banku Munda is held to be homicidal in nature which the trial Court has rightly so found. 7. He has further deposed that the weapon like wooden lathi M.O.-1 can cause such injury. Such evidence has gone unchallenged and there also remains no basic infirmity therein. Therefore death of Banku Munda is held to be homicidal in nature which the trial Court has rightly so found. 7. The most important evidence as regards the complicity of appellant, remains the so called dying declaration of the deceased said to have been made on his return from his father in law's place. P.W.1 the informant who is the elder brother of the deceased has deposed that his wife had gone to the house of the appellant during morning hour of the day and in the evening deceased Banku returned when he noticed bleeding injury on his head, base of the ear and over other parts of the body. He has further deposed that the deceased Banku told before them to have been assaulted by the appellant, his wife and their daughter (wife of the deceased) mercilessly. The witness has further stated that death took place two hours thereafter and for the same he had orally reported the matter to the gramarakhi, who reduced the same into writing and then it was lodged at the police station. As I find, absolutely no cross-examination has been directed to the witnesses on any score and the evidence practically remains uncontroverted. To add to this, evidence of P.W.2 who is neighbour of the appellant runs on the score that on that day around 4.00 P.M. she had seen that there was a quarrel in the house of the appellant. This witness is none other than the daughter in law of the appellant who was of course residing in a nearby house. She has further deposed that the appellant all of a sudden after return from the field when the quarrel was going on, snatching the wooden handle of the axe from his wife assaulted the deceased on his head and near his ears and on the other parts of the body. So, this witness is an eye witness as regards the authorship of the injury on the person of the deceased by the appellant. So, this witness is an eye witness as regards the authorship of the injury on the person of the deceased by the appellant. Evidence of this witness also appears to have not been seriously challenged except throwing bare suggestion with regard to the enmity that this witness was having quarrel with the wife of the deceased, no such effective cross-examination appears to have been made. Next, P.W.3's evidence corroborates evidence of P.W.1. This P.W.3 when has also been throwing with some suggestion that she was deposing falsehood, she has flatly denied. Gramarakhi of the village P.W.5 has further deposed that P.W.1 had been to him and told him about this fact and he having reduced his version into writing went with him to the Police Station where the report Ext.3 was lodged. There appears immediate disclosure of said fact of dying declaration by P.W.2 and reduction of the same into writing. The contents of the Ext.3 in no way appear to be inconsistent with the version of P.W.2 and other witnesses. P.W.2 and P.W.3's evidence along with the corroboration that P.W.2's evidence receives from Ext.3 go to establish beyond reasonable doubt that this appellant is the author of the head injury upon the deceased which led to his death as conclusively deposed to by P.W.6. 8. In view of the above conclusion, now the question stands for consideration as to whether it would be an offence punishable under Section 304-I, IPC or 304-II, IPC. It is the settled position of law that the manner of causing injury, nature of injury caused, the seat of such injuries where those are inflicted with its manner, the weapons employee for the purpose and conduct of the accused are all relevant factors to determine as to whether the offence committed is one culpable homicide amounting to murder or not amounting to so and next. 9. In the present case from the evidence it reveals that the appellant was not therein the scene of occurrence from the very beginning and he arrived there when the quarrel was going on between the deceased on one hand and his mother in law and wife on the other and by then it is stated that mother in law had already assaulted the deceased by means of that wooden handle M.O.I. The appellant suddenly arrived there snatched away the said handle from his wife and assaulted the deceased. So, from this it can not be said that while assaulting even he new that he is going to assault on the head of the deceased. Thus from this it can not be said that the appellant knowingly assaulted on the head of the deceased and aiming at head dealt the blow. But it has further been proved that the appellant instead of being detained after one blow, had also dealt blows thereafter which hit on other parts of the body of the deceased. The death in the case is also not instantaneous or at the spot. So from all these the intention on the part of the appellant to cause death or cause such bodily injury as is likely to cause death cannot be inferred although the knowledge that such injury is likely to cause death is attributable. Besides the appellant is a member of Scheduled Tribe community and hails from scheduled area of state. They by nature remain with their own understanding of nature and things around them having response in their own way with their level of knowledge, intelligence and approach. Therefore, a cumulative view on all these factors as they emanate from evidences as aforesaid, leads to hold that the act has been done by the appellant with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. 10. In the upshot of above discussions and reasons as aforementioned, I hold that finding of guilt for commission of offence under Section 304-I IPC and the order of conviction recorded by the lower Court thereunder needs alternation to one under Section 304-II IPC which I hereby do. In the facts and circumstances of the case and all relevant factors being cumulatively viewed sentence of rigorous imprisonment for a period of seven years in my considered view would be just, proper and appropriate as to commensurate with the offence. In the result, the appeal stands allowed in part. The appellant is found guilty for the commission of offence under Section 304-II, IPC and is hereby sentenced to undergo rigorous imprisonment for a period of seven years. Final Result : Partly Allowed