JUDGMENT By the Bench :- Appellant was prosecuted for committing uxoricide by learned Sessions Judge, Koraput, Jeypore in Criminal Trial No. 170 of 2002, The State – Vrs. Gopinath Paraja, (emanating from G.R. Case No. 382 of 2002 relating to Boriguma P.S. Case No. 66 of 2002) and was determined to be guilty of murder under Section 302 of I.P.C. and, therefore, was convicted for the said crime and was sentenced to imprisonment for life vide impugned judgment and order dated 04.10.2004, which verdict has now been assailed by the sole accused in the present Jail Criminal Appeal. 2.Prosecution allegations against the appellant, as unfurled before the trial Court, stated briefly, reveal that Kamala Paraja (deceased) was the wife of the appellant Gopinath Paraja, resident of village Badapindhapadar, police station Boriguma, under Sargiguda Gram Panchayat, district Koraput and they had two sons, namely, Balaram Paraja/PW2 and Dhanurjaya Paraja/PW4. Both the sons are married having their own families and they live separately. Buna Paraja/PW3 is the wife of PW2, who both have a daughter aged about 3 years on the incident date. Appellant was a daily labourer and used to go for labour in the morning and returned by the evening. While appellant used to stay with Balaram/PW2, the deceased used to stay with Dhanurjaya/PW4. On the ill-fated day 30.5.2002, both the sons and their wives had gone to work and deceased and appellant were alone in their houses. It is alleged that in their absence appellant wanted to take bath at about 10 A.M. and therefore, he asked his wife, the deceased, to look after the granddaughter, but since the deceased was in deep slumber in verandah she could not hear the command by the appellant. Outraged by the said, appellant had picked up a half brunt wooden plank and assaulted the deceased, who sustained a single bleeding injury on her head. After his return during lunch hours PW4 saw his mother in the bleeding condition in verandah of house of PW2 and therefore he called his elder brother PW2. On being asked as how she had sustained injuries, the mother was unable to reply. PW2 got the FIR about the incident, Ext. 5, slated down by Prasanna Kumar Mohanty/PW5, a co-villager, and then the same was lodged at police station Boriguma same day at 7 P.M., after covering a distance of 4 Kms to the police station. On being asked as how she had sustained injuries, the mother was unable to reply. PW2 got the FIR about the incident, Ext. 5, slated down by Prasanna Kumar Mohanty/PW5, a co-villager, and then the same was lodged at police station Boriguma same day at 7 P.M., after covering a distance of 4 Kms to the police station. Both the sons vainly tried to make medical help available to their mother by attempting to transport her to the hospital, but at Boriguma bus stand she succumbed to her injury. This incident had occurred on 30.5.2002 at 10 A.M. F.I.R. by PW2, Ext. 5, was registered at Boriguma P.S. as case No. 66 of 2002 under Section 302 of I.P.C., arraigning the appellant as the sole accused. Harekrushna Majhi/P.W. 11, working as O.I.C., Boriguma P.S. had received Ext. 5 at 7 P.M. from informant Balaram Paraja (P.W. 2) and had registered the case. Ext. 5/2 is the formal F.I.R. drawn by PW11. 3.Engineering the investigation, P.W. 11 examined the complainant and other witnesses, commanded Constables Nilambar Majhi/PW8 and Khagapati Majhi, through Command Certificate/Ext. 9 to proceed for the incident spot and guard the dead body. I.O. thereafter visited the spot and guard the dead body. I.O. thereafter visited the spot and found the corpse of the deceased lying in the verandah. A spot map vide Ext. 11 was prepared and thereafter other witnesses were examined and their statements were slated down. Inquest on the cadaver of the deceased was performed vide Ext. 1 and subsequent to that at 8.30 A.M. dead body of the deceased was dispatched to the Medical Officer, B. Singhpur P.H.C. for autopsy purposes through Constable Nilambar Majhi/PW8 along with dead body challan/Ext. 10. Appellant was arrested at 10.30 A.M. by the I.O./P.W.11 and his wearing apparel, a lungi/M.O.V., was seized vide seizure list Ext. 3/1. Blood stained earth from the spot and half burnt wooden plank/M.O.I., which was lying at the incident spot were seized through seizure list/Ext. 2. Accused was forwarded to the Magistrate on 1.6.2002. The attires of the deceased, a green saree/M.O.II, internal wearing clothes/M.O.III, and a waist rope/M.O.IV, on production by the Constable Nilambar Majhi/PW8, were seized, vide seizure list Ext. 8. Other witnesses, thereafter, were examined by the I.O. Autopsy report vide Ext. 2. Accused was forwarded to the Magistrate on 1.6.2002. The attires of the deceased, a green saree/M.O.II, internal wearing clothes/M.O.III, and a waist rope/M.O.IV, on production by the Constable Nilambar Majhi/PW8, were seized, vide seizure list Ext. 8. Other witnesses, thereafter, were examined by the I.O. Autopsy report vide Ext. 6 was received by the I.O. and thereafter he made a query from the doctor regarding the half burnt wooden plank being the weapon of assault. Doctor’s opinion was received in affirmative. Ext. 7 is the query made by the I.O. and Ext. 7/1 is the report by the doctor. Thereafter, the recovered blood stained and sample earth along with the apparels seized by the I.O. were sent to R.F.S.L., Berhampur by forwarding report Ext. 12 which was received and has been proved as Ext. 13. The scribe of the F.I.R. was examined and concluding the investigation the I.O. had charge-sheeted the appellant under Section 302 of I.P.C. 4.The autopsy of the cadaver of the deceased was performed on 31.5.2002 by Dr. R. Gouri Sankar Pattanaik (P.W.6) at 1.00 P.M. According to the doctor, the deceased was aged about 45 years. Rigor morties were present. She was having a black complexion and she had sustained an injury on the left side of the head 3 cm above the left ear size 6’’ length x 1’’ breadth and 6" depth. On the internal examination, P.W. 6 had detected that the left temporal bone was fractured, which has ruptured the membrane and dura matter was coming out. Cause of death was due to sudden injury to the vital organ like head on the left side. Injury was inflicted by hard and blunt weapon which has led to excess bleeding. Ischaemia because of that had occurred in the brain and ultimately had led to shock and death of the deceased. 5.On the strength of the submitted charge-sheet before the S.D.J.M., Jeypore, G.R. Case No. 382 of 2002 was registered, which in due course, finding the disclosed offence to be triable exclusively by the Court of Session, was committed to Sessions Court for trial. 6.Learned trial Judge charged the appellant with offence U/S 302 of I.P.C. on 23.8.2004 and since the appellant abjured that charge, pleaded not guilty and claimed to be tried that his prosecution commenced. 6.Learned trial Judge charged the appellant with offence U/S 302 of I.P.C. on 23.8.2004 and since the appellant abjured that charge, pleaded not guilty and claimed to be tried that his prosecution commenced. 7.During course of the trial, in all, prosecution examined eleven (11) witnesses out of whom Balaram Paraja/PW2, the informant, and Dhanurjaya Paraja/PW4 are the sons of the deceased and the appellant, while Buna Paraja/PW3 is the wife of PW2. Scribe of the FIR is PW5, autopsy doctor is PW6, while I.O. is PW11. Two constables are PWs 7 & 8. PWs. 1 & 9 are co-villagers and Sarpancha is PW10. Accused denied prosecution evidences and pleaded false implication but in his defence he did not examine witness nor produced any document. 8.Learned trial Judge on the scanning of the materials, both documentary and oral, held that the prosecution has successfully anointed guilt of the appellant for the charge of murder and, therefore, convicted and sentenced him as above vide impugned judgment and order, which now has been assailed in the instant appeal. 9.In view of the above background facts that we have heard Mrs. M. Kanungo, learned counsel for the appellant and Sri. J. Katikia, learned Additional Government Advocate for the respondent-State. 10.Initially, counsel for the appellant opened up the castigation of the impugned judgment by submitting that there is no eye witness account on the occurrence. No independent witness is there to support the prosecution version and PWs 2 to 4 all have turned hostile and did not support the charge. However, she ultimately confined herself by urging that looking to the evidence of the doctor which goes uncontroverted and unassailed, the deceased had sustained a single fatal blow in the incident which, according to the prosecution evidence itself, had occurred at the spur of the moment without premeditation and intention to commit murder, because of rashness of the appellant and hence no charge u/s 302 I.P.C. is proved against the appellant. No motive has been imputed to the appellant to cause death of the deceased and, therefore, learned trial Judge fell in error and committed ex facie mistake in convicting the appellant for the charge under Section 302 of I.P.C. Carrying her submission further learned counsel castigated the impugned judgment for the reason that the learned trial Judge without scanning the evidence in a proper manner, without appreciating attending facts and circumstances, has convicted the appellant in a pedantic manner and, therefore, the entire reason by the learned trial Judge is faulty. She ultimately submits that the crime of the appellant will not fall outside the periphery of Section 304, Part-II of I.P.C. and, therefore the appellant’s appeal be allowed and if at all he is to be convicted for the crime, then he can be convicted and sentenced only under 304(II) I.P.C. and since appellant had remained in penitentiary for 14 years behind the Bars, he should be let off on sentence for the period of imprisonment already undergone by him. 11.Learned Additional Government Advocate argues to the contrary. 12.We have given a thoughtful consideration over the entire facts and circumstances. Without verbalizing this judgment, we concentrate on the core issue as to whether, in the given facts and circumstances, the crime of the appellant will fall in the category either of murder punishable under Section 302 of I.P.C. or under culpable homicide not amounting to murder punishable u/s 304(I) I.P.C. or Section 304(II) I.P.C. and our examination of the record reveals that the incident had occurred all of a sudden inside the house of the appellant. Nobody else could have therefore seen the incident. The witnesses, who have been examined before the trial Judge includes, even those persons including the informant, who were the close relatives of the appellant. They had no reason to falsely implicate him. To be precise Balaram Paraja/P.W.2 and Dhanurjaya/PW4 are the sons of the appellants and PW3 is his daughter-in-law. Deceased was living with PW2. Albeit these witnesses have denied any knowledge about the incident but from their cross examination it is revealed that it was the appellant who had given a single blow to the deceased. When both PW2 & 3 were away from their house in connection with their vocation that the incident occurred. Deceased was living with PW2. Albeit these witnesses have denied any knowledge about the incident but from their cross examination it is revealed that it was the appellant who had given a single blow to the deceased. When both PW2 & 3 were away from their house in connection with their vocation that the incident occurred. At that time the appellant and 3 years aged daughter of P.W. 2 were only present in the house. Further a single blow was given to the deceased because the request of the appellant to look-for 3 years old granddaughter could not be heard by the deceased as she was in deep slumber. There is no reason for these witnesses to feign a false story against the appellant. In our examination, a single blow in such facts and circumstances certainly does not make out a case of murder against the appellant but he is certainly guilty of culpable homicide not amounting to murder punishable u/s 304(I) I.P.C. Learned trial Judge has committed an error on that score. 13.Without detailing over other facts, we hereby allow this Jail Criminal Appeal in part, set aside the conviction and sentence u/s 302 I.P.C. and sentence of life imprisonment and instead convict him u/s 304(I) I.P.C. Since the appellant has remained in jail for 14 years, in our estimation the period of sentence already undergone by the appellant will suffice and will meet the ends of justice. 14.We, therefore, allow the appeal in part, set aside impugned judgment and order and convict the appellant under Section 304(I) I.P.C. and sentence him to the period of imprisonment already undergone by him. Appellant is confined in jail. He is directed to be set at liberty forthwith unless he is required in connection with any other crime. 15.Let the judgment be communicated to the learned trial Judge as well as concerned Jail Superintendent, where the appellant is confined. Appeal allowed in part.