JUDGMENT VINOD PRASAD, J. - Challenge in this jail criminal appeal by the appellant Tankadhar Bemal, is to the impugned judgment of his conviction dated 31.07.2008, under Section 302 I.P.C. recorded by learned Additional Sessions Judge, Nuapada in Sessions Case No. 06 of 2007 (State-Vrs. – Tankadhar Bemal) arising out of G.R. Case No. 358/2006, T.R. No. 81/2007, relating to Komna P.S. Case No. 124 of 2006. The appellant has been convicted under Section 302, I.P.C. and has been sentenced to life imprisonment with fine of Rs. 1000/- and in default of payment of fine to serve 6 (six) months additional rigorous imprisonment. 2.The short question which has been canvassed before us by Sri S.C. Mekap, learned counsel for the appellant is that there is no reason to disbelieve the prosecution version, so far as involvement of the appellant is concerned, but the learned trial judge committed an error in convicting him under Section 302 I.P.C. whereas, on the evidence trotted out in the trial at the worst it will make out a case under Section 304, Part-I, I.P.C. The submission canvassed requires examination of the merits of the case and hence, we proceed to slate down the facts. 3.In village Maniguda under Komma Police Station, District Nuapada, two sibling brothers, namely, Gupteswar Bemal and Khageswar Bemal resided. Gupteswar Bemal has four sons, namely, Tankadhar Bemal (appellant), Lochan Bemal (PW 5), Hrushikesh Bemal (PW 1) and Jadumani Bemal (deceased). PW-2 Jagtani Bemal is the wife of the deceased. Madan Bemal (PW-3) is the son of Khageswar Bemal and is therefore, cousin of the appellant, the deceased and PWs. 1 and 5. The prosecution version further is that on 21.11.2006 Jagtani Bemal PW-2 cooked a chicken in the dinner which was consumed by the appellant as well as the deceased who thereafter went outside. After some time shriek of the deceased as “Dhain Asa” was heard by PW-2 Jagtani Bemal, who rushed to the incident spot, which was Courtyard of her house and witnessed, in the lantern light, that the appellant, who was the eldest brother of the husband of PW-2, was knifing the torso of the husband of PW-2, the deceased, who sustained knife injuries on his neck, left shoulder, hand, belly, thumb and fingers. Hearing the shrieks of the injured-Jadumani- deceased, PW-1 and other witnesses were also attracted at the spot and they had seen the deceased lying with bleeding stab injuries on the road. 4.The real brother Hrushikesh Bemal (PW-1) along with the nephew-Samudra alias Lakhpati Bemal (PW-4), Madan Bemal (PW-3) came to Tarbod Police Outpost and lodged a report after being scribed by one Lochan Moharatha. Further prosecution case is that by the time the informant and other witnesses had arrived at the Police Outpost, the accused- appellant had also arrived there and had handed over the blood stained knife to the police which was seized. The written report alleged to have been scribed by Lochan Moharatha lodged by PW-1 is Exhibit 1. 5.Dolamani Mallik (PW-10) functioning as ASI, Tarbod Police Outpost, under Komna Police Station, received a written report from PW-1 and prepared station diary No. 366 on 22.11.2006 and then dispatched a report to Komna Police Station for registration of the formal FIR while commencing investigation into the crime. PW-10, as the first I.O. examined the informant and the witnesses came to the spot and seized the weapon of offence from the accused-appellant and also his wearing apparels vide seizure list Exhibit 4. Sample plain earth and blood stained earth were seized vide Exhibit 3. 161 Cr.P.C. statements of other witnesses were also recorded. The knife seized from the appellant is MO-I whereas MOs. II to V are the wearing apparels of the accused-appellant. Accused-appellant was also dispatched for medical examination through requisition Exhibit 9/2. On 22.11.2006 further investigation was handed over to the OIC, Komna Police Station. The spot map prepared by PW-10 is Exhibit 10. 6.Amiya Charan Tripathy (PW-11) is the second I.O., who had taken over investigation from PW-10. He has registered P.S. Case No. 124/06 under Section 302 I.P.C. Inquest was conducted over the cadaver of the deceased and inquest report Exhibit 2 was prepared. Dead body challan to ADMO (Med.) DHH, Nuapada was also Prepared. Dead body was dispatched through constable C/33 Pandit Nayak for autopsy purposes. Recovered knife was sent for query from the doctor regarding it to be a weapon of assault. Witnesses and their statements were recorded. Some of the drapers were also recovered by PW-11. Original Command Certificate No. 33 is Exhibit 5. Dead body was dispatched through constable C/33 Pandit Nayak for autopsy purposes. Recovered knife was sent for query from the doctor regarding it to be a weapon of assault. Witnesses and their statements were recorded. Some of the drapers were also recovered by PW-11. Original Command Certificate No. 33 is Exhibit 5. A small bottle containing the nail clippings of hand and legs of the appellant, one small bottle containing sample blood of the accused and CC No. 55 dated 22.11.2006 were seized by PW-11 vide seizure list Exhibit 6. The accused-appellant was arrested at 7.00 P.M. on 22.11.2006 and was forwarded to the Court on the following day at 11.00 A.M. On 02.12.2006 PW-11, the 2nd I.O., received the P.M. examination report of the deceased along with opinion of the doctor in respect of the weapon. On 15.12.2006, the 2nd I.O. prayed for sending the knife to the Director, RFSL, Berhampur vide forwarding report Exhibit 11 and chemical examination report received in that respect is Exhibit 12. Wrapping the investigation charge-sheet was submitted against the appellant. 7.Dr. Narendra Meher (PW-8) conducted autopsy on the dead body on 22.11.2006 while functioning as Assistant Surgeon, DHH, Nuapada. He had noted following injuries on the cadaver of the deceased:- (1) A stab wound of size 3cmx 2 cm x bone deep 5 over left elbow joint. (2) Incised wound 1 cm x .5 x 2 cm 10 cm above left joint. (3) Incised wound 1 cm x.5 x 2 cm 3 cm from the fist wound. (4) Stab wound 4 cm. x 2 cm x 5 cm over left axilla. (5) Abrasion of 2 cm x 1 cm to the liner extension on No. 5 injury. (6) Abrasion of 3 cm x 1 cm x skin deep over left clavicle. (7) Multiple scratches over left half of the chest and abdomen. (8) Stab wound over left cheek of 3 cm x 2 cm x bone deep on the back side. (9) Incised wounds over the back side of size 3cm x 2 cm x skin deep and 2 cm x 1 cm respectively. (10) Incised wound 2cm x 1 cm x 2 cm over right side of neck 5 cm over sterno clavicular joint. (9) Incised wounds over the back side of size 3cm x 2 cm x skin deep and 2 cm x 1 cm respectively. (10) Incised wound 2cm x 1 cm x 2 cm over right side of neck 5 cm over sterno clavicular joint. Further examination of the deceased revealed that all the injuries were ante mortem in nature and the fatal injuries had damaged the left lungs and ruptured the carotid artery which were sufficient in normal course of nature to cause death. Those injuries could have been inflicted by sharp cutting and pointed weapon. Cause of death was Hypo volumic shock due to profuse hemorrhage and the nature of death was homicidal. Autopsy report of the deceased is Exhibit. 8 and was signed by the doctor. 8.Dr. Umakanta Meher (PW-9) had examined the appellant on 22.11.2006 and had noted following injuries on his person:- (1) Circular abrasion of size 2" on left side of chest ½” below clavicle and one inch lateral to sterno clavicular joint. (2) Swelling of size 2" x 1" on left side of forehead 2" above eye brow. (3) Linear abrasion of size 3" x 1/5th “ on rt. Forearm backside 2” below elbow. All the injuries were simple in nature and were likely to have been inflicted by blunt weapon. The appellant was referred to DHH, Nuapada. Medical examination report prepared by PW9 is Exhibit. 9. According to the doctor the appellant had sustained injuries on the vital part of the body. 9.Learned trial judge scanning and vetting through the material on record ultimately concluded, vide impugned judgment and order, that the charge of committing murder has been proved against the appellant and therefore has convicted him for the said offence and has sentenced him for life imprisonment which now has been assailed in the instant appeal by the convict accused. 10.We have heard Sri S.C. Mekap, learned counsel for the appellant and Mrs. Saswata Pattnaik, learned Additional Government Advocate for the State. 11.As already noted above, the only contention raised by Mr. Mekap is that the crime will not exceed the purview of Section 304, Part-I, I.P.C. We, for the said purpose, carefully scrutinize and analysis the evidences of fact witnesses. Saswata Pattnaik, learned Additional Government Advocate for the State. 11.As already noted above, the only contention raised by Mr. Mekap is that the crime will not exceed the purview of Section 304, Part-I, I.P.C. We, for the said purpose, carefully scrutinize and analysis the evidences of fact witnesses. So far as informant-Hrushikesh Bemal (P.W. 1) is concerned, he had arrived at the spot after hearing hullah of the deceased and his wife emanating from the backside of the house of the accused appurtenant to the road and found the deceased lying with bleeding injury, who had sustained stab wounds. The moment PW-1 arrived at the spot, the deceased expired. PWs. 2, 5 and another witness were present at that time. Wife of the deceased (PW-2) had informed PW-1 that it was the appellant, who had killed her husband, Thus, PW-1 had no personal knowledge about the incident. He had divulged only what has been informed to him by PW-2 widow of the deceased. 12.Turning to her (PW-2) evidence we find she has testified that she had cooked chicken which both the appellant and deceased had eaten and then both of them had gone out of her house. Thereafter she heard shrieks of her husband “Dhain Asa” and had seen in lantern light infliction of knife blows on the torso of the deceased. She has no idea about the genesis of the incident and why the appellant acted so bizarre. She tried to intervene but was threatened by the appellant who thereafter, left the spot. PW-2 tried to save her husband but because of the inflicted injuries he succumbed. However, in the cross-examination, PW-2 seems to have informed the I.O. that her husband (deceased) was telling “NIJA NIJA HIJAT NIJA ROKHO.” It also seems that she had informed the I.O. that the deceased and appellant took liquor with the chicken. 13.Turning to the evidence of another brother of the deceased and the appellant, Madan Bemal (PW-3) he was sleeping inside the house and after hearing commotion he has arrived at the spot. He had also seen the deceased lying in an injured condition. PWs 1, 2 and another witness were present at the spot. This witness also does not seem to have any knowledge about genesis of the incident. So is the statement of nephew of the deceased and the appellant Samudra alias Lakhpati Bemal (PW-4). He had also seen the deceased lying in an injured condition. PWs 1, 2 and another witness were present at the spot. This witness also does not seem to have any knowledge about genesis of the incident. So is the statement of nephew of the deceased and the appellant Samudra alias Lakhpati Bemal (PW-4). He also does not have first hand knowledge about the reason for assault and how the incident started. During cross-examination this witness states that at 4.00 P.M. both the accused and deceased took liquor and were walking. Rests of the witnesses also do not have any idea about the incident as to how it started. 14.In view of the aforesaid we find that the prosecution has not been able to bring out any motive for the deceased to assault his younger brother. Both of them seems to be in an inebriated condition and it seems that they had fought with each other, as the injuries sustained by the appellant does not seem to be manufactured. Prosecution has not at all explained those injuries. Though the injuries are simple in nature but nonetheless they are on the vital part of the body. It cannot be ruled out that in fact both the brothers fought with each other and in that scuffle the appellant lost his self control and stabbed his youngest brother which unfortunately proved fatal. No immediate causa causance has been disclosed by the prosecution to come to an unerring and infallible conclusion that the appellant positively intended to annihilate the deceased and commit his murder. Incident seems to have occurred at the spur of the moment without any premeditation. It seems that losing self control the appellant exceeded right of private defence as, in absence of any explanation about the injury of accused, it cannot be said with any amount of certainty that it was the appellant who had started the assault. The converse seems to be true. In view of aforesaid analysis we are of the opinion that the crime proved against the appellant will not exceed culpable homicide not amounting to murder punishable under Section 304, Part-I, I.P.C. Learned trial judge has not carefully ;examined the evidence and he seems to be swayed away by the fact that the brother has committed fratricide. His examination on record seems to be a remiss without separating the grain from the chaff. His examination on record seems to be a remiss without separating the grain from the chaff. 15.In view of our discussion as above, we are of the opinion that the appeal deserves to be allowed in part as the conviction of the appellant under Section 302 I.P.C. deserves to be scored out and instead he deserves to be punished for offence under Section 304, Part-I of the I.P.C. for which offence, the sentence period already undergone by him, which is near about 10 years will suffice as the appellant is in jail since 22. 11. 2006. 16.In the ultimate outcome, the appeal succeeds and is allowed in part. Conviction and sentence of the appellant under Section 302, I.P.C. with sentence of life imprisonment both are scored out and instead the appellant is convicted under Section 304, Part-I, I.P.C. and is sentenced to the period of imprisonment already undergone by him. The appellant is in jail. He is directed to be released forthwith unless he is required in jail in connection with any other crime. 17.Let the trial Court and the jail authority be informed accordingly. Appeal succeeds and allowed in part.