JUDGMENT : S. Panda, J. - This Jail Criminal Appeal is directed against the judgment and order dated 17.07.2004 passed by the learned Sessions Judge, Dhenkanal in Sessions Trial No.101 of 2001 in convicting the appellant for commission of offence under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1000/- (one thousand) only, in default, to undergo R.I. for further three months. 2. The prosecution case, in brief is that the appellant, the deceased along with others were working as labourers in a brick kiln of one Keshaba Chandra Panda. The brick kiln was situated at Kalapal under Parjang Police Station in the district of Dhenkanal. All the? labourers used 'to stay in the huts near the kiln. 9th January 2001 was the occasion of Pausa Purnima. The Manager of the brick kiln distributed Rs. 25/- to each of the labourers to celebrate the occasion of Pausa Purnima on 9th January 2001. The Manager gave Rs. 50/- to the deceased asking him to keep his share of Rs. 25/- and give balance of Rs. 25/- to the appellant, as both the appellant and deceased were remaining in one hut. Since the deceased did not pay the amount of Rs. 25/- immediately to the appellant, the appellant dealt successive blows on the head and ear of the deceased by the handle of a spade, for which the deceased sustained injuries and consequently died. Thereafter on the basis of the FIR lodged by the Manager of the brick kiln, the case was registered. After completion of investigation, charge-sheet was submitted against the appellant finding sufficient evidence against him to have committed offence under Section 302, I.P.C. 3. In order to bring home the charge, during trial, the prosecution examined as many as 11 witnesses and exhibited 17 documents. On the other hand, neither the defence has examined any witness nor exhibited any documents. The appellant's defence plea was one of complete denial. 4. The learned Sessions Judge after threadbare discussion of the materials available on record, convicted the appellant for commission of the offence punishable under Section 302, IPC and sentenced him to undergo imprisonment for life. 5. Perused the L.C.R. and gone through the evidence on record carefully. The appellant's defence plea was one of complete denial. 4. The learned Sessions Judge after threadbare discussion of the materials available on record, convicted the appellant for commission of the offence punishable under Section 302, IPC and sentenced him to undergo imprisonment for life. 5. Perused the L.C.R. and gone through the evidence on record carefully. It appears that the prosecution has basically founded its case on the basis of the statements of the eye witnesses, i.e. P.Ws. 10 and 11 who were then working as labourers, who specifically stated that both of them were sitting near the fire along with the deceased. The appellant came and dealt blows by the handle of a spade on the back side of the head of the deceased. P.W 10 has categorically stated that the deceased, the appellant and the labourers of the brick kiln are Adivasis, which has been corroborated by P.W.4. P.W.1 was the Manager of the brick kiln, who in his examination-in-chief had stated that both the appellant and deceased were residing in one hut. He had given Rs. 50/- to the deceased and told him to give Rs. 25/- to the appellant. Since the deceased did not handover Rs. 25/- to the appellant, there was quarrel between them for which he intervened in the matter and settled the same. While he was in his office, one Sambaru Munda and his wife shouted that Arjuna Kisan-the appellant assaulted Banshi Kishan-the deceased by means of the handle of a spade. Hearing Sambaru, he rushed to the spot and found the injured succumbed to the injuries. He noticed bleeding injuries on the head and ear of the deceased. He went to the hut where both the deceased and appellant were residing. On being asked, the appellant stated that he had killed the deceased. He then lodged the FIR in Saranga Outpost under Parjang Police Station and the appellant was arrested by the police. In cross examination, he has stated that he had not seen the occurrence. The other Prosecution Witnesses, such as P.Ws. 2, 3, 4 and 5 were Post Occurrence witnesses. They upon hearing the shout went to the spot and found that the deceased was lying dead with bleeding injuries on the head and ear. In cross examination, he has stated that he had not seen the occurrence. The other Prosecution Witnesses, such as P.Ws. 2, 3, 4 and 5 were Post Occurrence witnesses. They upon hearing the shout went to the spot and found that the deceased was lying dead with bleeding injuries on the head and ear. P.W.6 was the Investigating Officer, who in the examination-in-chief had stated that he was working as A.S.I. of Police of Sarang a Outpost under Parjang Police Station. On 09.01.2001, on the basis of the written report submitted by P.W.1, he made S.D. Entry No. 155 dated 09.01.2001. He' took up the investigation and proceeded to the spot, i.e. Khalpal village where he found the dead body in front of the house of Sambaru Munda. P.W. 8, who was another ASI attached to Parjang Police Station, took the charge of investigation, visited the spot, held inquest over the dead body, prepared the inquest report and sent the body for postmortem examination. He prepared the dead body chalan, seized the bloodstained earth, the weapon of offence, i.e. the handle. On that date at 1.00 p.m. he arrested the appellant. He then sent the seized articles to Forensic Science Laboratory, Rasulgarh for chemical examination. P.W.3, who conducted postmortem examination on the dead body of the deceased found lacerated wounds behind the left ear and above the left eye-brow. The wounds above the ear were situated over the scalp. There was depressed fracture of skull causing injury to the membranes. There was subarachnoid hematoma under the fracture of skull bone. The injuries were ante-mortem in nature, which in ordinary course of nature may cause death. P.W.9, who was the Scientific Officer of District Forensic Science Laboratory in his examination-in-chief had stated that he had collected the bloodstained earth from near the dead body, seized lathi and one brown coloured terricot lungi. His examination revealed that all such articles contained some blood stains. The prosecution exhibited seventeen documents including F.I.R. under Ext. 1, Post Mortem Report under Ext.5 and Chemical Examination Report under Ext.13 in support of the case. The prosecution also proved five Material Objects wherein the weapon of offence, i.e. Handle of Spade has been marked as M.O.-V.s Taking into consideration of the above evidence on record, the learned Trial Court convicted the appellant and passed the sentence as indicated above. 6. Mr. The prosecution also proved five Material Objects wherein the weapon of offence, i.e. Handle of Spade has been marked as M.O.-V.s Taking into consideration of the above evidence on record, the learned Trial Court convicted the appellant and passed the sentence as indicated above. 6. Mr. Ragada, learned counsel for the appellant without challenging the evidence of the eye witnesses submits that even if the prosecution case is entirely accepted, the case is not coming under the purview of Section 302 IPC, but at best the same can be a case under Section 304 Part-I IPC being covered by Exception-4 to Section 300 IPC. According to him, the appellant belongs to Scheduled Tribe community. The appellant assaulted the deceased in the heat of passion due to sudden provocation made by the deceased. 7. Learned Additional Government Advocate however supported the impugned judgment and contends that the case is coming under the purview of Section 302, IPC. He relies mainly on the evidence of P.Ws.10 and 11 who are the ocular witnesses to the occurrence. 8. In the case of Virsa Singh v. State of Punjab, AIR 2005 Supreme Court 1281, the Hon'ble Apex Court has held that the prosecution must prove the following facts before it could bring the case under Section 300 thirdly'. (a) "First, it must establish, quite objectively, that a bodily injury is present; (b) Secondly, the nature of the injury must be proved; these are purely objective investigations. (c) Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. 9. There is no dispute that the appellant belongs to Adivasi community. It is obvious that such people are of different mindset and they commit offences on the spur of moment. Pausa Purnima being the principal annual festival of the Adivasis, the appellant had intended to celebrate the function with the money provided by the Manager. When the deceased had refused to pay money, he had been deprived from such celebration of annual festival, which provoked with sudden anger at the spur of the moment. On the pit of such uncontrollable anger, he assaulted the deceased with the wooden handle of a spade. The wooden handle was lying there at the spot. When the deceased had refused to pay money, he had been deprived from such celebration of annual festival, which provoked with sudden anger at the spur of the moment. On the pit of such uncontrollable anger, he assaulted the deceased with the wooden handle of a spade. The wooden handle was lying there at the spot. There was no premeditation since the appellant had not come prepared particularly for the said incident. The Trial Court had not taken into consideration while passing the sentence that the appellant was an Adivasi, i.e. Scheduled Tribe Community. Normally tempers run high with tribunals and often they give vent to their baser instincts without restraint. The learned Trial Court had also not noted that the appellant was not allowed to enjoy the annual festival which enraged him and he had a grievance against the deceased. There was sufficient reason for the appellant to become anger and on the date of incident his anger provoked him to commit the offence. 10. A Division Bench of this Court in the case of Sania Dora alias Badnaik v. State reported in 1984 (1) OLR 665 considered the facts of that case where there had been a sudden quarrel between the wife of the deceased on one hand and the appellant on the other and in course of which the co-accused had shot arrows at the deceased and his wife, and the deceased had shot an arrow at the co-accused. On the spur of moment, without any premeditation and being incensed, the appellant belonging to an aboriginal tribe dealt a blow which landed on the head of the deceased, who survived for some time and then succumbed to the injury. In those circumstances the order of conviction and sentence passed against the appellant under Section 302 IPC was set aside. Similar view has been taken in a Jail Criminal Appeal by another Division Bench of this Court in the case of Mandangi Samburu v. State, 1985 (1) OLR 271 . 11. The appellant was the author of the crime and due to sudden quarrel in the heat of passion, he assaulted the deceased. Such an attack was without premeditation, for which the appellant is entitled to benefit of Exception-4 of Section 300 IPC. For better appreciation, Exception-4 of Section 300 IPC is quoted hereunder. 11. The appellant was the author of the crime and due to sudden quarrel in the heat of passion, he assaulted the deceased. Such an attack was without premeditation, for which the appellant is entitled to benefit of Exception-4 of Section 300 IPC. For better appreciation, Exception-4 of Section 300 IPC is quoted hereunder. "Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner." Accordingly, we set aside the order of conviction under Section 302, IPC and sentence of rigorous imprisonment for life passed by the learned Sessions Judge, Dhenkanal in S.T. Case No. 101 of 2001 and convict the appellant under Section 304, Part-I of the IPC 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. 09.01.2001, thus for more than 15 years by now. 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 above. S.K. Sahoo, J. - I agree. Final Result : Partly Allowed