JUDGMENT : S.Panda, J. This Jail Criminal Appeal is directed against the judgment dated 16.3.2006 passed by the learned Addl. Sessions Judge, Fast Track Court, Malkangiri in Criminal Trial No. 6 of 2005 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.5,000/-, in default, to undergo rigorous imprisonment for six months. 2. The prosecution to bring home the charge against the appellant based on the following facts as per the F.I.R. story:- The deceased and the appellant are father and son. They resided together in one house. There was a quarrel between father and son and the appellant drove out the deceased and his mother from the house for which they were living under a tamarind tree in front of the house. While the deceased erected the poles in the vacant space for construction of a house, the appellant dismantled the same. The deceased thereafter at night on 20.2.2005 went to the house of the appellant and asked him as to why he was selling away the lands and spending money lavishly and consuming liquor all the time. The appellant got enraged and gave reply that the land belonged to him and he would do whatever he likes. So saying, he had picked up bow and arrow and shot an arrow at the deceased. The deceased raised hullah. On hearing hullah, the villagers came into the spot and they took him Khairaput C.H.C. The matter was reported before the O.I.C., Mudulipoda Police Station who registered Mudulipada P.S. Case No. 4 of 2005 under Section 307 of the I.P.C. and the deceased was shifted from Khairaput C.H.C. to District Headquarters Hospital, Koraput on 20.2.2005. While undergoing treatment, he succumbed to the injuries i.e. on 22.2.2005. During treatment at District Headquarters Hospital, Koraput, the deceased gave dying declaration which was recorded by Dr.Manoj Kumar Dash on requisition in presence of the witnesses. On 22.2.2005 after the death of the deceased, autopsy was done by the doctor Kedarnath Choudhury of D.H.H., Koraput. After the death of the deceased, the case was turned to one under Section 302 of the I.P.C. Police took up investigation and submitted charge sheet. 3. In order to prove its case the prosecution examined as many as twelve witnesses. On 22.2.2005 after the death of the deceased, autopsy was done by the doctor Kedarnath Choudhury of D.H.H., Koraput. After the death of the deceased, the case was turned to one under Section 302 of the I.P.C. Police took up investigation and submitted charge sheet. 3. In order to prove its case the prosecution examined as many as twelve witnesses. Out of them, P.W.1 is the doctor who recorded the dying declaration of the deceased. P.W.2 is the informant Dhabulu Sisa, the brother of the deceased. P.W.3 is an independent witness namely, Sania Mandra. P.W.4 is an independent witness namely, Lachhmi Sisa. P.W.5 is a witness namely, Radhika Sisa, wife of the deceased. P.W.6 is an independent witness namely, Lachhmi Sisa. P.W.7 is the wife of Dhabulu Sisa. P.W.8 is an independent witness. P.W.9 is an independent witness. P.W.10 is the I.O. P.W.11 is the O.I.C., Mudulipoda Police Station who submitted charge sheet and P.W.12 is the doctor who performed autopsy over the body of the deceased. 4. The plea of the appellant is of complete denial of the allegation. Defence has examined one witness in his favour. 5. The learned Addl. Sessions Judge, Fast Track Court, Malkangiri 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. 6. The learned counsel for the appellant submits that 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-II IPC being covered by Exception-4 to Section 300 IPC. According to him, the appellant belongs to Scheduled Tribe community. The appellant shot the arrow on 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.1 and 12. 8. 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 P.W.1 and P.W.12 who recorded dying declaration and conducted autopsy over the dead body respectively. 9. P.W.1 is the doctor who recorded dying declaration of the deceased on police requisition. 8. 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 P.W.1 and P.W.12 who recorded dying declaration and conducted autopsy over the dead body respectively. 9. P.W.1 is the doctor who recorded dying declaration of the deceased on police requisition. He stated in his evidence that the deceased was undergoing treatment as an indoor patient at District Headquarters Hospital, Koraput. He was suffering from penetrating injury with perforative peritonitis. The dying declaration was recorded at 10.40 P.M. and at that point of time the deceased was in fit mental condition to answer the question. The deceased also stated that he sustained injury due to assault by his son Guru Sisa(appellant) who shot an arrow at him. 10. P.W.12 is the doctor of D.H.H., Koraput who conducted autopsy over the dead body of Sukra Sisa and furnished the report Ext.18. The post mortem report reveals the deceased sustained following injuries:- (i) Punctured penetrating wound of size 2” x ½” x 4” deep penetrating the muscels of the right arm. (ii) Lacerated wound on the right axilla of 2” x 1” in size. (iii) Penetrating wound of size 1 ½” length & ½” breadth and 3” width over the right elbow. (iv) Lacerated wound on ulnareaspect of right elbow of size 2” length x ½” breadth. (v) A deep penetrating wound over the upper abdominal wall on right side about 4” above umbilicus. The size was 1” length ½” breadth and has penetrated through and through the abdomen rupturing the transvers col. Right lobe of liver was ruptured. There was profused haemorrhage into the abdominal cavity. (vi) Lacerated wound of size 2” length x ½” breadth on the breast over the back at the level of dorsal spine. In his examination, he stated that the injuries were ante-mortem in nature and possibly the penetrating wounds were caused by arrow shots. The cause of death was due to the result of injury No.5 which was very grave and serious. The said injury can cause death in ordinary course of nature. The death is homicidal. 11. The other prosecution witnesses, such as P.Ws.2, 3, 4, 5, 6, 7 and 8 did not support the prosecution case. P.W.10 is the S.I. of town P.S., Koraput. The said injury can cause death in ordinary course of nature. The death is homicidal. 11. The other prosecution witnesses, such as P.Ws.2, 3, 4, 5, 6, 7 and 8 did not support the prosecution case. P.W.10 is the S.I. of town P.S., Koraput. He stated that on 21.2.2005 he received intimation from the Medical Officer, D.H.H., Koraput regarding the admission of the deceased. The Medical Officer (P.W.1) requested him to arrange for recording dying declaration. As the presence of Executive Magistrate could not be arranged at such short notice, he requested P.W.1 to record the dying declaration. Accordingly it was recorded vide Ext.1 in his presence. While recording the dying declaration, the deceased disclosed that he was assaulted by his son Guru Sisa by bow and arrow. On receipt of news of death of deceased, he intimated the O.I.C. of Mudulipoda P.S. and conducted inquest over the dead body. 12. P.W.11 is the I.O. of the case who registered the case and took up investigation and submitted charge sheet under Section 302 of the I.P.C. He proved the documents which have been marked as Exts. In his cross-examination, he stated that he did not know the deceased earlier. He saw him for the first time at Khairaput C.H.C. At that time his wife, brother Dhabulu Sisa and others were present. He examined them. Taking into consideration of the above evidence on record, the learned Trial Court convicted the appellant and passed the sentence as indicated above. 13. 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. On the pit of such uncontrollable anger, he shot arrow on the deceased. 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 tribals and often they give vent to their basic instincts without restraint. 14. 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’. Normally tempers run high with tribals and often they give vent to their basic instincts without restraint. 14. 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. 15. 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 and assault on the deceased on the spur of moment, without any premeditation and being incensed. He 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 under Section 302 IPC was set aside and convicted under Section 304 Part-II of the I.P.C. 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 reported in 1985 (1) OLR 271. 16. The appellant was the author of the crime and on the spur of moment due to sudden quarrel and heat of passion, the appellant assaulted the deceased by bow and arrow. The injuries are not on the vital part of the body of the deceased as reveals from Ext.18 as per the post mortem report. The deceased succumbed to the injuries after two days. Such an attack was without premeditation. 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.” 17. Such an attack was without premeditation. 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.” 17. Accordingly, we set aside the order of conviction under Section 302 IPC and sentence of imprisonment for life passed by the learned Addl. Sessions Judge, Fast Track Court, Malkangiri in Criminal Trial No. 6 of 2005 and instead convict the appellant under Section 304, Part-II of the IPC and sentence him to undergo imprisonment for the period already undergone by him. 18. It is stated at the bar that the appellant by now has remained in custody for more than ten years. By accepting the statement, this Court directs release of the appellant from custody forthwith, if his detention is not required in any other case. 19. The Jail Criminal Appeal is accordingly allowed in part by modifying the impugned judgment of conviction and sentence to the extent indicated above. Lower Court records be sent back forthwith.