JUDGMENT : 1. The Present Jail Criminal Appeal is directed against the judgment dated 12.12.2002 passed by the learned Sessions Judge, Sundargarh in S.T. No. 215 of 1998 convicting the appellant u/s 302, IPC and sentencing him to undergo imprisonment for life. The prosecution case in brief is that on 26.05.1998 Bishnu Patra (P.W.1), the Gram Rakhi appeared before the S.I. of Tensa Out-Post and orally reported that on the previous night at about 9 P.M. when he was in his house, the appellant-Gurua Naik came to him and confessed before him that on 25.05.1998 at about 4 P.M., he and his wife were returning from his in-law's house. They were walking on the Rajabasa-Silida road. On the way, there was a quarrel between them, as a result of which the appellant lost his temper, picked up a stone from the road side and attacked the deceased on her head. She sustained bleeding injury on her head and died there. On the next day i.e., 26.5,1998 the Gram Rakhi (P.W.1) went to the spot and found the deceased lying there and a lot of blood had come out from her head. Then, he left the appellant-Gurua Naik with the Ward-Member and other villagers and proceeded to the Tensa Out-Post and orally reported about the incident to the Investigating Officer, who reduced the same into writing and sent the same to the Lahunipada Police Station for registration of the case. In course of investigation, the Investigating Officer examined witnesses and sent the dead body for post-mortem examination, seized incriminating articles, etc. After completion of investigation, the Investigating Officer submitted the final form u/s 302, I.P.C. against the appellant. 2. The prosecution in order to prove its case examined as many as 9 witnesses including the doctor (P.W.2) and the Investigating Officer (P.W.9) and exhibited 15 documents and produced the stone (M.O. I) and the defence examined none. On completion of trial, the learned Sessions Judge, Sundargarh convicted the present appellant u/s 302, IPC basing upon extra-judicial confession made by the appellant before P.Ws.1 and 3, which according to him was well corroborated by other materials available on record. Thereafter, the present appellant preferred this appeal. At the time of hearing of the case, a question was raised relating to admissibility of confessional statement made before the Choukidar. Accordingly, the case was referred to a larger Bench. Thereafter, the present appellant preferred this appeal. At the time of hearing of the case, a question was raised relating to admissibility of confessional statement made before the Choukidar. Accordingly, the case was referred to a larger Bench. The larger Bench decided the matter and delivered the judgment on 24.01.2014 to the effect that Grama Rakhi is not a police officer and the confessional statement made before him is admissible and remitted the matter back. 3. Mr. Gouri Sankar Pani, learned counsel for the appellant submits that even if the prosecution case is entirely accepted, the case is not coming under the purview of Section 302, I.P.C, but at best the same can be a case u/s 304 Part I, I.P.C. being covered by Exception-4 to Section 300, I.P.C. Learned counsel for the appellant mainly relies on the evidence of P.W.3, who is an independent witness. Therefore, he prays the case may be converted to Section 304, I.P.C. 4. Mr. Sk. Zafarulla, learned Additional Standing Counsel for the State vehemently opposes the submission made by the learned counsel for the appellant and contends that the case is not coming under the purview of Section 304, I.P.C. He relies mainly on the evidence of P.Ws.1, 3 and 4. He further contends that the appellant cannot get the benefit of Exception-4 of Section 300, I.P.C. as in his examination u/s 313 Cr.P.C. he denied the story of quarrel. Thus, the crux of the case rests on the nature of extra-judicial confession made by the appellant. 5. Perused the evidence of the witnesses. P.W.1 is the Gram Rakhi. He lodged the F.I.R. before the Lahunipada Police Station and thereafter, the case was registered. In his examination-in-chief, he stated that on Monday night the appellant came to him and confessed his guilt saying that he had killed his wife by means of a stone in the jungle path near Rajabasa. He was acquainted with the appellant prior to the occurrence, because they had worked together in the same Mines. After confessing his guilt and as it was dead hour of the night, P.W.1 asked the appellant to sleep in his house with the assurance that he would take him to the police station on the next day. On the next day, P.W.1 took the appellant to the police station. After confessing his guilt and as it was dead hour of the night, P.W.1 asked the appellant to sleep in his house with the assurance that he would take him to the police station on the next day. On the next day, P.W.1 took the appellant to the police station. But, before he went to the police station he verified the dead body of the deceased which was lying near the road. Then they proceeded to the Tensa Out-Post and P.W.1 orally reported about the incident before the Sub-Inspector (P.W.9), who reduced his report into writing and read-over the same before him and finding the same to be correct, P.W.1 put his signature. P.W.1 proved the F.I.R. (Ext.1). In cross-examination, the core prosecution story relating to confession remains un-demolished. P.W.2 is the Doctor. In his examination-in-chief, he has stated that the deceased was aged about 23 years. He found the following external and internal injuries; External injuries; (i) A lacerated wound of the size 3 c.m. x 4 c.m. situated over 5 c.m. above from the left ear. (ii) A lacerated wound of the size 4 c.m. x 1/2 c.m. situated ever 9 c.m. above from the left ear. (iii) A lacerated wound of the size 2 c.m. x 2 1/2 c.m. situated over 15 c.m. above from the left year. (iv) A lacerated injury of the size 3 x 3 1/2 c.m. situated above 4 c.m. above the right eye brow. (v) One lacerated wound of size 3 c.m. x 1/2 c.m. situated over 5 c.m. above the right eye brow. (vi) One lacerated wound of size 2 c.m. x 1/2 c.m. situated over 6 1/2 c.m. above from the right ear. (vii) One lacerated wound of the size 4 c.m. x 1/2 cm. situated over 7 c.m. from right ear. (viii) Two lacerated wounds of sizes 4 1/2 c.m. x 1/2 c.m. and 5 c.m. x 1/2 c.m. on the right occipital part of the head. Internal Injuries: (1) Comminuted fracture over the right occipital bone and right parietal bone and left parietal bone. (2) Brain matter was liquefied. The spinal cord was soft and pulpy. P.W.2 opined that all the visceras were preserved for chemical examination. He further stated that all the injuries were ante-mortem in nature. Internal Injuries: (1) Comminuted fracture over the right occipital bone and right parietal bone and left parietal bone. (2) Brain matter was liquefied. The spinal cord was soft and pulpy. P.W.2 opined that all the visceras were preserved for chemical examination. He further stated that all the injuries were ante-mortem in nature. P.W.2 further stated that cause of death of the deceased was due to external and internal bleeding caused due to the injuries to the head leading to shock and death. Nothing substantial has been elicited from P.W.2 during his cross-examination. P.W.3 is a Ward Member of the village. He is also a witness before whom, the appellant had confessed about the incident. The appellant admitted before P.W.3 that on the day of occurrence, he and his wife were proceeding through the forest and at that time her wife was carrying a child. When the appellant asked his wife to carry the child properly, she became angry and picked-up quarrel with the appellant. The appellant stated that due to such quarrel, he picked-up a stone from the ground and assaulted the deceased on her head, thereby causing her death. Bishnu Patra (P.W.1) went to make a report in Tensa Out-Post. After the arrival of the police, the I.O. in presence of P.W.3 seized some sample earth, bloodstained earth and bloodstained stone and also prepared the seizure list (Ext.5). The above facts are corroborated by the evidence of P.Ws. 1 and 2 (Doctor) and F.I.R. In the cross-examination, the prosecution story on confession remains undemolished. In view of the above, there is no dispute that the present appellant made confessional statement before P.Ws.1, 3 and 4 and from scanning of the entire evidence, it is crystal clear that the appellant was the author of the crime and due to sudden quarrel in the heat of passion, he picked up a stone from the ground and attacked the deceased and killed her. The only question that remains is whether he can take the benefit of the above evidence as he has not taken the said stand during his examination u/s 313 Cr.P.C. In this context, the learned counsel for the appellant drew our attention to the case of Dharminder @ Dharma Vs. The only question that remains is whether he can take the benefit of the above evidence as he has not taken the said stand during his examination u/s 313 Cr.P.C. In this context, the learned counsel for the appellant drew our attention to the case of Dharminder @ Dharma Vs. State, wherein it has been held by Delhi High Court that:- The settled law is that the burden of proving that his case falls within any of the exceptions of Section 300, I.P.C. is upon the accused. But the mere fact that the accused adopted another defence in his statement u/s 313 Cr.P.C. and did not claim the benefit of any of the exceptions of Section 300, I.P.C. is not enough to deny the accused the benefit of any of the exceptions of Section 300, I.P.C, if the Court can cull out materials from the evidence on record pointing to the existence of the circumstances leading to an exception. Relying on above proposition of law, if we analyse the evidence, it is clear that the appellant attacked the deceased without premeditation in the heat of the passion on account of sudden quarrel. Thus, the appellant is entitled to benefit of Exception-4 to Section 300 I.P.C. Therefore, it is a fit case where instead of Section 302, I.P.C., the appellant should be convicted u/s 304 Part I. In this context, this Court also relies on the case of Gurdial Singh and Others Vs. State of Punjab, and Nanak Ram Vs. State of Rajasthan, as cited by learned counsel for the appellant. Accordingly, this Court modifies the conviction of the appellant to one u/s 304 Part I, I.P.C. and sentence him to undergo R.I. for 10 years. It is stated at the Bar that the appellant is languishing in custody from the date of his arrest, i.e., 26th May, 1998, thus for more than 15 years. By accepting the statement, this Court directs release of the appellant from custody forthwith, if his detention is not required in any other case. The Jail Criminal Appeal is accordingly allowed in part by modifying the impugned judgment of conviction and sentence to the extent indicated. Final Result : Partly Allowed