JUDGMENT PRAMATH PATNAIK, J. 1. This JCRLA is directed against the judgment and order dated 4-4-2006 passed by learned Ad-hoc Additional Sessions Judge, Bonai in Sessions Trial No. 126/42 of 2003-2004 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life for the said offence and to pay a fine of Rs. 5000/- and in default to undergo R.I. for further one year. 2. The prosecution case as revealed from the FIR, in a nutshell, is that on 26-3-2003 at around 12.45 p.m. the informant Devprakash Jaiswal, who is a driver by avocation was waiting near tube-well for arrival of his labourers after lunch. At that time he spotted a local resident namely Yakub Barla (appellant) armed with GHANA (hammer) tramping on the road uttering words to kill today and proceeding towards the house of Rama Pradhan. Thereafter, aged wife of Rama Pradhan was heard telling him Sukurmani (deceased) what have I done to you. Subsequently, P.W. 5 heard hammering sound emanating from the house of Rama Pradhan. Circumstantially, one girl namely Laxmi Jarei (P.W.7) came running towards him in a distressed mood from the house of the deceased. Seeing her P.W. 5 suspected some foul play and rushed towards the house of the deceased and found the deceased lying dead with profuse bleeding from her mouth having injuries on her left side face and under the right side ear. P.W. 5 further found the accused Yakub Barla returning from the spot towards his house with a blood stained hammer. P.W. 5 raised hullah that Yakub killed the old lady Sukurmani by hammer, on which Rabi Singh, Jagdish Nag and other villagers reached the spot. P.W. 5 reported the matter orally at Police Station which was reduced into writing by the O.I.C., Koira P.S. Basing upon the said report Koira P.S. Case No. 11 of 2003 was registered under Section 302, IPC against the accused and investigation was set into motion, during course of which, inquest (Ext. 1) was held, post-mortem examination (Ext. 7) was done and the I.O. seized the wearing apparels of the accused vide Ext. 2, wearing apparels of the deceased vide Ext. 3, blood stained earth, sample earth (Ext. 5), weapon of offence (Ext. 6), received the Chemical Examination report (Ext. 15) with serological report (Ext. 16) prepared spot map (Ext. 1) was held, post-mortem examination (Ext. 7) was done and the I.O. seized the wearing apparels of the accused vide Ext. 2, wearing apparels of the deceased vide Ext. 3, blood stained earth, sample earth (Ext. 5), weapon of offence (Ext. 6), received the Chemical Examination report (Ext. 15) with serological report (Ext. 16) prepared spot map (Ext. 11), interrogated witnesses and recorded their statements and on completion of investigation, charge-sheet was submitted under Section 302, IPC against the present appellant. 3. The plea of the appellant is that of total denial of the allegations. 4. The prosecution in order to substantiate the charges against the accused examined as many as nine witnesses. P.W. 1 is the husband of the deceased and is a post occurrence witness. P.W. 2 is said to be a witness to the inquest (Ext. 1). P.W. 3 (C/758) is a witness to seizure of wearing apparels of the accused vide Ext. 2 and wearing apparels of the deceased vide Ext. 3. P.W. 4 is a witness to seizure of wearing apparels of the deceased. P.W. 5 is the informant and eye-witness to the occurrence. P.W. 6 is a witness to the inquest as well as seizure of blood stained earth and sample earth vide Ext. 5 and seizure of weapon of offence i.e. GHANA (hammer) vide Ext. 6. P.W. 7 is the witness to the occurrence as an eye-witness. P.W. 8 is the doctor, who conducted the post-mortem examination. P.W. 9 is the Investigating Officer. No witness was examined on behalf of the defence to refute the charge. 5. We have heard Mr. B.K. Ragada, learned counsel for the appellant and Mr. D.K. Mishra, learned Additional Government Advocate for the respondent and have perused the lower Court record and evidences of the prosecution witness minutely. 6. Learned trial Court basing on the evidence of P.Ws. 5, 6 and 7 coupled with the evidence of doctor (P.W. 8) has fastened guilt on the appellant for having committed the murder of the deceased Sukurmani. 7. 6. Learned trial Court basing on the evidence of P.Ws. 5, 6 and 7 coupled with the evidence of doctor (P.W. 8) has fastened guilt on the appellant for having committed the murder of the deceased Sukurmani. 7. Learned counsel for the appellant has strenuously urged that assuming that the appellant is the author of the crime and the death has been caused by the appellant; but the injuries inflicted by the accused as per the doctor, P.W. 8 noted in the post-mortem report were only two bruises on the temporal region which would not have fastened guilt on the accused-appellant beyond 304, Part-I, IPC. 8. On the other hand, Mr. D.K. Mishra, learned Additional Government Advocate vehemently contends that the trial Court on the basis of the ocular testimony coupled with medical evidence has rightly convicted the appellant under Section 302, IPC. 9. In order to appreciate the rival contentions, let us scan through the evidence of material witnesses. P.W. 5, who is the informant of this case, in the examination-in-chief has stated that he knew the accused standing in the dock and also the deceased Sukurmani Pradhan. The occurrence took place in the month of March, 2003 on a Wednesday at 12.45 p.m. in the front side verandah of the deceased at village Mirigdega. P.W. 5 was having a Truck bearing No. OSO 4117. On that day his truck was parked at the relevant time near the spot as the labourers had gone to their respective houses for taking lunch. He was standing near a tube-well adjacent to the parking place. At that time, accused was speeding towards the house of the deceased by holding a big hammer (locally called as GHANA) uttering that Aji Mari Debi (to kill today). Simultaneously, one minor girl namely Laxmi Jarei of that village came from the side of the house of the deceased in a frightened condition and revealed before P.W. 5 that the accused has caused the death of the deceased by assaulting her by means of a hammer. P.W. 5 immediately rushed to the spot and found the deceased lying dead with profuse bleeding injury from her mouth, ear, cheek and head. He also found the accused fleeing away from the spot towards his house after killing the deceased. P.W. 5 raised hue and cry by saying Maridela Maridela. P.W. 5 immediately rushed to the spot and found the deceased lying dead with profuse bleeding injury from her mouth, ear, cheek and head. He also found the accused fleeing away from the spot towards his house after killing the deceased. P.W. 5 raised hue and cry by saying Maridela Maridela. Hearing his cries, co-villagers Rabindra Singh, Ashok Singh and others came to the spot. Informant then asked the villagers to guard the dead body. Then, he proceeded to the Police Station and orally reported the incident before Thana Babu (Invesitgating Officer), who reduced the same into writing. Then Thanababu (Investigating Officer) read over and explained the contents of FIR to him whereupon, P.W. 5 signed the same finding the same to have been correctly recorded and said FIR is Ext. 4 and Ext. 4/1 is signature of the informant. Subsequently, informant came to know that the accused had killed the deceased suspecting her to be a sorcerer. P.W. 6 is a witness to the inquest has stated in his examination-in-chief, that at the relevant time, he was working as Supervisor in a private mining company at Koira. On the relevant date, he had come to his house to take lunch. While he was taking his lunch in his house, he heard the cry of the informant (who is otherwise known as Kalu Bhai) who was shouting Yakub Barla Budhiku Maridela (Yakub Barla had killed the old lady). Hearing the hullah, he rushed to the spot and found the deceased lying dead in pool of blood at the spot having injuries on her ear, face and head. Other co-villagers also arrived at the spot. Thereafter, the informant asked them to guard the corpse and he proceeded to the Police Station to report the matter. Sometimes thereafter, thana babu (constable clerk) came to the spot and held inquest over the dead body of the deceased in his presence and prepared the inquest report. The said inquest report is as Ext. 1 and Ext. 1/2 is his signature. The I.O. also seized blood stained earth and sample earth from the spot in his presence by preparing a seizure list, which is marked Ext. 5 and Ext. 5/1 is his signature. The Investigating Officer also seized (GHANA (big hammer) from the back yard of the house of accused in his presence by preparing a seizure list, which is marked Ext. 6 and Ext. 5 and Ext. 5/1 is his signature. The Investigating Officer also seized (GHANA (big hammer) from the back yard of the house of accused in his presence by preparing a seizure list, which is marked Ext. 6 and Ext. 6/1 is his signature. The son of the accused Matu Barla has kept the said hammer in the back yard of their house after snatching the same from the accused. The said hammer was fixed with a wooden handle and some portion of the handle was covered with rubber. The iron portion of the hammer was broken to some extent and it was stained with blood. P.W. 6 correctly identified the hammer, M.O. VI. P.W. 7 is the eye-witness to the occurrence and has stated in her examination-in-chief that she knew the informant of this case to whom she addresses as BHENEI (brother-in-law). She knew the accused Yakub Barla who was standing in the dock and also the deceased Sukurmani to whom she addresses as MAMI. The occurrence took place in the verandah of the house of deceased at about noon. At the relevant time, she was sitting along with her Mami (deceased) when the accused came running towards him armed with a Ghana (big hammer) and asked the deceased as to why she was practising black magic in the night on him. The deceased replied that she had not practised any witch craft on him and saying so, she tried to flee. At that time, the accused dealt blow with the said hammer on the right side ear and face of the deceased. As a result, the deceased fell down on the ground having sustained multiple bleeding injuries and died at the spot instantly. Seeing the ghastly act, out of fear, while she was running towards her house, she met the informant standing near the tube-well parking his truck there. Seeing him, she narrated the incident before him where after, he raised shouts. Subsequently, some of the co-villagers rushed to the spot. When she was cross-examined, she stated that the deceased sustained two blows. The first blow hit on the ear and the second blow hit on the chin and refuted defence case that she had not gone to the spot and that she was deposing falsehood at the instance of P.W. 5. Subsequently, some of the co-villagers rushed to the spot. When she was cross-examined, she stated that the deceased sustained two blows. The first blow hit on the ear and the second blow hit on the chin and refuted defence case that she had not gone to the spot and that she was deposing falsehood at the instance of P.W. 5. P.W. 8 is the doctor, who conducted post-mortem examination over the dead body of the deceaed Sukurmani Pradhan. The dead body had two external injuries i.e. (i) Bruise 3" x 3" over left temporal region. (ii) Bruise 2" x 2" over right temporal region. Both the bruises were bluish in colour. The cause of death was due to laceration of cerebral hemisphere and intra cranial haemorrhage. Time since death was within six hour. P.W. 8 makes report is Ext. 7 and Ext. 7/1 is the signature of the doctor. All the injuries found on the deceased vide Ext. 7 were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. On 27-3-2003 on police requisition, P.W. 8 collected the blood sample of accused Yakub Barla in a clean and dry viral and sealed it and handed over the same to K.B. Pujhari, Crime Havildar, Koira P.S., vide collection report Ext. 8. On 2-4-2003 on police requisition, doctor had examined the weapon of offence having a wooden handle of length of 2-2. The hammer was blood stained. He opined that the injury found over the deceased Sukurmani Pradhan were possible by it and were grievous enough to cause death in ordinary course of nature. 10. On perusal of lower Court records and on threadbare analysis of evidences, it is not disputed that the nature of death has been established as homicidal. The external injury sustained by the deceased as per the report of the doctor (P.W. 8) there were only two bruises on the temporal region. From the external injuries and taking into consideration the weapon of offence (hammer) the degree of culpability on the appellant would not travel beyond S.304, Part-I, IPC. It would thus be appropriate to hold the appellant guilty only of that crime which has been proved by the prosecution beyond all reasonable doubt. From the external injuries and taking into consideration the weapon of offence (hammer) the degree of culpability on the appellant would not travel beyond S.304, Part-I, IPC. It would thus be appropriate to hold the appellant guilty only of that crime which has been proved by the prosecution beyond all reasonable doubt. Once the intention to commit murder or an intention to give such fatal injury as in all probability would have resulted in death of the deceased is not satisfactorily proved, the only course left open is to hold the appellant guilty of offence of culpable homicide not amounting to murder punishable under Section 302, Part-I, IPC. Thus, in our considered opinion recorded conviction, under Section 302, IPC and the imposed sentence of life imprisonment are unsustainable and instead the appellant can be held to be guilty only for committing offence punishable under Section 304, Part-I, IPC of culpable homicide not amounting to murder for which rigorous imprisonment of about eleven years as already has been served by the appellant appears to be just and appropriate sentence. 11. In our view the appellant had no surest intention to commit murder is fortified by the fact that had he harboured such an intention he would not have approached the house of the deceased uttering words to do away with her in such loud voice so as to be audible to the all and sundry. It seems that something was done by the deceased which had rankled the appellant so much that he was under enormous mental agony which had become unbearable for him. Moreover use of hammer was not with such excessive force even to cause lacerated wound to the deceased. It seems that deceased was old and fragile and even a mild blow caused fractures and injury to her inner brain. Further no injury on her chin was detected by the doctor as was stated by the eye-witness and it seems that in fact only a single blow was inflicted on her and because of heaviness of weapon and its size that both sides of bones were fractured. Appellant belong to tribal people and for them black magic, witch craft and sorcery has always been a thing to take revenge. Appellant belong to tribal people and for them black magic, witch craft and sorcery has always been a thing to take revenge. Thus looking to the mental condition of the appellant and his conduct we are of the opinion that he acted with recklessly to chastise the old lady to teach her a lesson but it cannot be said with any amount of certainty that appellant possessed a definite intention to cause murder albeit knowledge that death may be the outcome of his act can be safely imputed to him. Besides above contention regarding mollifying the offence no other contention of substance worth delineating was urged by learned counsel for the appellant, therefore, it is not essential for us to deliberate on those aspects. Otherwise also so far as guilt of the appellant is concerned from our independent analysis we also find the same to have been well anointed so as to require any interference by us. 12. Thus, appeal is allowed in part. Conviction of the appellant under Section 302, IPC and sentence of life imprisonment therefore, are hereby set aside and instead the appellant is convicted under Section 304, Part-I, IPC. Appellant, as on date, has already undergone eleven years of sentence and therefore, period of imprisonment already undergone by him is sufficient to meet the ends of justice and it is hereby ordered as such. 13. The appellant is directed to be set at liberty unless he is wanted in any other crime. 14. Appeal is allowed in part as above. 15. I agree : Vinod Prasad, J. Appeal partly allowed.