JUDGMENT : Vinod Prasad, J. This appeal by appellant Giridhari Dehury emanates against the impugned judgment of conviction u/s 302 I.P.C. dated 30.6.2004 and order of sentence for life imprisonment and to pay a fine of Rs.2000/-otherwise serve additional RI for months there for recorded by Additional Sessions Judge, Talchar, in S.T.No.18 of 2003, State versus Diridhari Dehury, relating to P.S. Khamar district Angul. 2. Shorn of unnecessary details, prosecution allegations against the appellant, as are perceptible from the FIR and depositions of fact witnesses and other evidences are that the Gobardhan Dehury, deceased, and his wife Jahaja Dehury, both were resident of village Sanda, police station Khamar district Angul and had three sons and two daughters, the appellant being their eldest son, while informant Sumanta Dehury/PW10, was their second son. Except the appellant rest of the family resided together in one house situated in down town village. Deceased by vocation was a priest as well as a sorcerer as he also used to practise witchcraft. Appellant, who had four issues, residing separately from rest of the family was all the time insisting and beseeching his father(deceased) to partition the ancestral property in which appellant had a legitimate share for which the deceased was not agreeable. Three or four days prior to the murder incident, wife and children of the appellant had left for their parental/maternal grand-father’s house as, it is also alleged, that the appellant was crotchety and quarrelsome and used to fight with them. Additionally it is alleged that on 1.4.2003 deceased returned to his house from the market situated a kilometre away from their house and both the appellant and the deceased started conversing with each other while deceased’s wife/PW1 gave him water to wash his hands and feet. While the deceased was bending to wash his feet that all of a sudden at that time 2.15 p.m. appellant inflicted a single hatchet blow on the neck of the deceased due to which deceased died instantaneously and squatted on the ground. The appellant escaped from the spot leaving the hatchet behind at the incident scene. While the deceased was bending to wash his feet that all of a sudden at that time 2.15 p.m. appellant inflicted a single hatchet blow on the neck of the deceased due to which deceased died instantaneously and squatted on the ground. The appellant escaped from the spot leaving the hatchet behind at the incident scene. Besides PW1, widow of the deceased this incident was also witnessed by Santilata Samal/PW2, Dukhabandu Behera/PW8 and others and immediately after the murder Saudamini Dehury/PW3, sister of the appellant and daughter of the deceased, came at the incident spot and saw the cadaver of her father and appellant tramping away from the spot. 3. Informant Sumanta Dehury/PW10, was conveyed the murder of his father at the house of his uncle where he was present at that time and therefore he rushed to his house where he scribed, FIR, Ext 3 same day which he had handed over to the I.O., at the spot at 4 p.m. on the basis of which formal FIR was registered at the police station at 6 p.m. same day at a distance of 18 KMs. 4. Murder information having being relayed to Rasananda Behara/PW13,Officer-In-Charge, P.S.Khamar on phone, he immediately sprang up in action and arrived at the incident village , where he commanded Head Constable Athani Behra and Saroj Kumar Amanta to guard the corpse of the deceased and I.O. himself received the written FIR Ext.3 and dispatched it for registration of formal FIR at the police station through Gramrakhi Loknathha and on the basis of Ext.3 that formal FIR was registered at the P.S. same day at 6 p.m. Setting a foot the investigation, O.I.C. interrogated informant and other witnesses, collected blood stained and plain earth vide seizure list Ext.2, conducted inquest over the corpse of the deceased and slated inquest memo Ext.1 and then dispatched the cadaver for autopsy purpose along with command certificate and body chalan Ext.7. Appellant accused was arrested and from his possession a napkin vide Ext.5 was seized. Blood stained Dhoti of the deceased was seized vide Ext.4. Blood sample and nail clippings of the accused appellant were also seized vide Ext.6. Weapon of offence was sent for forensic examination vide Ext.8 and finally wrapping up the investigation, the investigating Officer charge sheeted the accused appellant. 5. Post mortem examination on the dead body was conducted by Dr. Blood stained Dhoti of the deceased was seized vide Ext.4. Blood sample and nail clippings of the accused appellant were also seized vide Ext.6. Weapon of offence was sent for forensic examination vide Ext.8 and finally wrapping up the investigation, the investigating Officer charge sheeted the accused appellant. 5. Post mortem examination on the dead body was conducted by Dr. Rajendra Nath Tripathi/PW14 on 1.4.2003, who had inked autopsy report Ext.11. On 9.4.2003 doctor had also examined the hatchet and opined that injury sustained by the deceased was possible by it Vide Ext 8/2. Doctor had noted following facts in his post mortem examination report:- “An antemortem grievous cut injury of size 2 and ½ inches length one inch breadth and one and half inches depth over lateral surface of neck left side below the ear and mastoid process. The injury extended up to servical vertebrae below sterno-cledomastoid muscle. Left carrotid artery and common Jugular veins cut transversely. The injury was grievious and might have been caused by sharp cutting weapon. Cause of death was due to profuse haemorrhage leading to shock. The injuries inflicted on the body of the deceased were sufficient in ordinary course of nature to cause death.” 6. Forwarding of the charge sheet against the accused appellant to the court resulted in initiation of court proceedings by summoning of the accused appellant, whose case, in the usual course, after observing necessary formalities, was committed to Sessions Court for trial, where learned trial Judge charged him with offence u/s 302 I.P.C. on 7.2.2004. Since appellant abjured that charge, pleaded not guilty and claimed to be tried that his trial commenced. 7. Prosecution during course of the trial rested it’s case by examining in all fourteen witnesses including wife/widow of the deceased /PW1, Santilata Samal/PW2 and Dukhabandhu Behra/PW8 as the three eye witnesses. Informant/PW10 and Saudamini Dehury/PW3, son and daughter of the deceased, are post incident witnesses who had not witnessed the actual assault albeit the daughter deposed that she had seen appellant retreating from the incident spot. Other two brothers of the deceased Suresh Dehury/PW6 and Kanhu Dehury/PW7 likewise are not witnesses of actual assault and they both are also post incident witnesses. Birabar Sahu/PW4, Khageshwar Sahu/PW5, Iswar Sahu/PW9, Sagar Naik/PW11, and Athani Debata/PW12 are seizure witnesses. PW13 is the I.O. whereas PW14 is the autopsy doctor. Other two brothers of the deceased Suresh Dehury/PW6 and Kanhu Dehury/PW7 likewise are not witnesses of actual assault and they both are also post incident witnesses. Birabar Sahu/PW4, Khageshwar Sahu/PW5, Iswar Sahu/PW9, Sagar Naik/PW11, and Athani Debata/PW12 are seizure witnesses. PW13 is the I.O. whereas PW14 is the autopsy doctor. Besides these witnesses prosecution also tendered eleven documentary exhibits to lend credence to its story. 8. Appellant’s plea is of total denial and of false implication. 9. As noted earlier learned trial Judge believed and relied upon prosecution witnesses and concluded that guilt of the appellant has been established convincingly, therefore convicted and sentenced the appellant as above vide impugned judgment and order, the challenge to which decision has been made in the instant appeal. 10. In above back ground that we have heard Sri Jashobanta Das, learned counsel for the appellant and Sri S.K.Jafarullah, learned Additional Standing Counsel for the respondent State and have critically examined trial court record and evidences. 11. From our vetting of the record what is discernible is that so far as conviction of the appellant is concerned it can not be said that he is not the perpetrator of the crime. His presence at the spot is too well anointed to create any doubt. It is a day light incident which occurred at the house of the deceased and hence presence of PW1 at the spot, who is mother of the appellant and wife of the deceased, cannot be doubted. She is a natural witness and her being the mother, no reason exists for her to tell tale a story or depose terradiddle against the appellant. From her cross examination defence has utterly failed to get elicited any damaging statement eroding her credibility. Otherwise also it will be naive to cogitate that a mother will feign a manipulated and concocted story against her own son as the murderer of her husband and his father. Entire testimony of the widow/PW1, when vetted searchingly, projects that she is a reliable witness with no hostile feeling against the appellant and hence there is scanty reason to discard her version. Categorically she had deposed that it was the appellant who had inflicted a single blow on the neck of the deceased and she could not spot the weapon earlier because one hand of the appellant was towards back. Categorically she had deposed that it was the appellant who had inflicted a single blow on the neck of the deceased and she could not spot the weapon earlier because one hand of the appellant was towards back. Her graphic description about the incident is convincing and seems to be unblemished. PW1 is well supported by PW2 and PW8 in all significant aspects of the incident and from them also defence has not been able to extract any favouring material to caste a doubt on the authenticity of the prosecution version. Here it will but be apt to mention that entire cross examination of theses witnesses circled round insignificant and trivial aspects and no major effort was made to dislodge their testimonies. Attour version of the widow is also credited with res gestie evidence of PW3, her daughter, who in no uncertain terms stated that she had spotted appellant escaping from the incident scene. Still significant is the fact that the name of the appellant surfaced immediately after the incident as the murderer and at least two of his uncles had deposed as such. Medical evidence of the doctor and recovered weapon of assault further corroborates her depositions and hence it has to be concluded that the mother is a truthful witness. She being the pivotal of the prosecution case and her presence being natural and well cemented that the inescapable conclusion which emerges is that it was the appellant who had assaulted the deceased at the date and time of the incident and but for him nobody else could be the assailant and hence we conclude that appellant is the real culprit. 12. At this juncture we note that no worthwhile submission was canvassed before us challenging the veracity of the FIR version, contents of post mortem examination report, inquest report and site plan and hence we would take that no criticism was available for the defence in respect of these significant documentary evidences. Blood present at the spot with recovery of hatchet fixes incident spot convincingly. 13. Now we advert to the contentious issue regarding the offence proved against the appellant. Blood present at the spot with recovery of hatchet fixes incident spot convincingly. 13. Now we advert to the contentious issue regarding the offence proved against the appellant. When facts and evidences are scanned in the light of surrounding circumstances and evidences of witnesses we find sufficient force in appellants contention that the offence against the appellant will not transgress ambit of culpable homicide not amounting to murder and reasons being that the incident occurred at the spur of the moment without any premeditation and a single blow was hurled on the neck. Appellant had separated from rest of the family and as conceded by the mother/PW1 he was demanding his rightful claim which was being denied ostensibly for the reason that the deceased wanted to keep it with rest of the family including his other sons and hence appellant had all the apprehension in his mind that he will be deprived of the usufruct of that property. Appellant had four issues and therefore he must be inquisitive of their welfare and economic wellbeing. Mother who alone was present at the spot had deposed that she could not hear the conversation between the two and hence immediate cause for the appellant to act so bizarrely is not known. We are robbed off the evidence as to what really rankled the appellant that he went extreme to assault his father. Appellant had no criminal proclivity nor he had a criminal back ground. No other incident was reported against him except the present one. He had not abused the deceased nor there was any triadic altercation between them and hence what transpires is that the deceased must have uttered something which had infuriated the appellant who precipitously acted offensively in haste by giving a single blow by hatchet and this extricates his crime from the ambit of murder and places it within the fold of culpable homicide not amounting to murder punishable u/s 304 part I as the possibility that the appellant wanted to teach a lesson to the deceased for his covetousness cannot be ruled out completely. In this connection we do not approve of the slated view by the learned trial Judge. Reasons which weighed with him as inked in para 26 are wholly insufficient to anoint murder charge on the appellant as they are peripheral, insidious and superficial. In this connection we do not approve of the slated view by the learned trial Judge. Reasons which weighed with him as inked in para 26 are wholly insufficient to anoint murder charge on the appellant as they are peripheral, insidious and superficial. Learned trial Judge has recorded that because appellant came at the scene concealing the hatchet and that he used sufficient force on the neck of the deceased when he was bending and therefore his crime will fall within the mischief of murder in fact is an abdication of in-depth analysis of surrounding circumstance and facts which led to the incident. As noted herein above appellant had to foster his family. His wife and children had left him just four days ago possibly because of poor fiscal condition and this has left the appellant all alone in his house. His legitimate share was not being parted away by the father who wanted to give it to his other sons as the statement of the mother in her examination-in-chief is “ But the deceased refused to make partition since other three children were there”. In her cross examination she has further stated “ Wife of the accused had left his house 3 to 4 days prior to the incident. The accused had four children. The accused was demanding his legitimate share from the properties.” Thus appellant was under enormous mental tormentation and therefore the dialogue between the father and the appellant must have infuriated him. Since in our view the analysis by the learned trial Judge is faulty and unsustainable therefore we take a counter approach to mollify the rigor of the crime from murder to culpable homicide not amounting to murder. Further more from examination of the impugned judgment we have failed to gather convincing material on the above score and hence are of the view that appellant can be held to be guilty only u/s 304 part I and not u/s 302 I.P.C. 14. Turning towards sentence from the record it becomes apparent that appellant had already under gone more than 10 years of R.I. as an under trial as well as during pendency of present appeal. Only in January this year(2014) he was allowed bail but subsequently he was again arrested and put in jail. In our view the period of sentence undergone by the appellant shall meet the ends of justice. 15. Only in January this year(2014) he was allowed bail but subsequently he was again arrested and put in jail. In our view the period of sentence undergone by the appellant shall meet the ends of justice. 15. In the final outcome, the appeal is allowed in part. Conviction of the appellant u/s 302 I.P.C. and sentence of life imprisonment for that offence are scored out and instead appellant is convicted u/s 304 part I I.P.C. and for that crime he is sentenced to the period of imprisonment already under gone by him, which is more than 10 years R.I. Fine (Rs. 2000/-) awarded to the appellant and default sentence (6 months additional imprisonment in the event of non payment of fine) remains unaltered. Appellant is permitted to deposit the fine within a month. Appellant since now is incarcerated in jail is directed to be released forthwith, unless he is required in connection with any other case on his furnishing a personal bond of Rs 10,000/-(Rupees thousand) with two solvent sureties of his family members to facilitate him to pay the amount of fine as awarded within the period allowed failing which his personal and surety bonds shall be cancelled and he shall be taken into custody to serve out default sentence. 16. Appeal is allowed in part as above. 17. Let copy of the judgment be certified to the learned trial judge for its information.