JUDGMENT : S.Panda, J. This Criminal Appeal is directed against the judgment dated 13.11.1998 passed by the learned Sessions Judge, Koraput, Jeypore in Sessions Case No. 43 of 1996 in convicting the appellant No.1-Asman Gond for commission of offence under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and rigorous imprisonment for five years under Section 201 read with Section 34 of the I.P.C. The sentence under Section 201 of the I.P.C. shall run concurrently with the sentence under Section 302 of the I.P.C. The learned Sessions Judge also convicting the appellant No.2-Durjan Gond to undergo rigorous imprisonment for five years under Section 201/34 of the I.P.C. 2. The prosecution case, in brief is that the deceased was married to appellant Asman Gond. Appellant Asman Gond came to the house of Sukalu Gond, the brother of the deceased and told that the deceased was missing. On knowing so, the brother of the deceased and others searched for her, but could not find her. Two to three days thereafter he went to the house of appellant Asman with one Manohar Gond, Sarpanch of Jodinga Panchayat and asked the appellant No.1 as to what happened to the deceased. On their repeated asking, appellant No.1 narrated that he has killed the deceased and concealed the dead body about six days before. After such disclosure by appellant No.1 the brother of the deceased had lodged a F.I.R. (Ext.6) on 14.11.1995 before the Officer-in-charge of Raighar P.S. On the said information the Officer-in-charge of Raighar P.S. registered P.S. Case No. 67/95 and took up investigation. In course of investigation the investigating officer visited the spot i.e. the house of the accused at Biripur and prepared spot map. He searched the house of the accused, seized silver ornaments under Ext.7, examined the witnesses and arrested the accused persons on 15.11.1995 at 9 A.M. While in custody accused Asman Gond gave his statement and showed the place of concealment of the dead body. The dead body was found at a distance of ten meters away from the place of concealment. In presence of the Executive Magistrate he conducted inquest over the dead body and prepared inquest report. Then the dead body was sent for post mortem examination. The dead body was in the form of skeleton. The dead body was found at a distance of ten meters away from the place of concealment. In presence of the Executive Magistrate he conducted inquest over the dead body and prepared inquest report. Then the dead body was sent for post mortem examination. The dead body was in the form of skeleton. The same was also sent to Forensic Medicine and Toxicology Department, Berhampur with query regarding the cause of death. The wearing apparels of the deceased were seized on 16.11.95 near the spot where the dead body found. The dead body and wearing apparels were identified by the informant (P.W.5). The report of the Professor, F.M. & T Department, Berhampur i.e. (Ext.14) was received on 24.11.95. After completion of investigation charge sheet was filed. 3. In order to bring home the charge, during trial the prosecution examined as many as eight witnesses. Out of them P.Ws.2, 4 and 8 are Police officials. P.W.7 is the doctor who conducted the post-mortem examination on the dead body of the deceased on police requisition. P.W.1 is the mother of appellant Asman. P.W.3 is the then Block Development Officer-cum-Executive Magistrate, Raighar. P.W.5 is the informant who is also the brother of the deceased. P.W.6 is the Sarpanch of Jodenga Gram Panchayat. The prosecution also proved material objects i.e. a packet containing sari, saya blouse, plastic chain and broken bangles of decease which was marked as M.O.I. 4. The plea of the appellants are of complete denial of the allegation. 5. The learned Sessions Judge, Koraput, Jeypore after threadbare discussion of the materials available on record came to a conclusion that the death is homicidal in nature and convicted the appellant No.1 under Section 302/201/34 of the I.P.C. and appellant No.2 under Section 201/34 of the I.P.C. 6. Learned counsel for the appellants submitted that the prosecution story is based on extrajudicial confession of appellant No.1 which was made before P.W.5. There is no other materials other than such extra judicial confession, thus the order of conviction and sentence passed by the court below is liable to be interfered with. He further submits that in alternative if the prosecution case is to be accepted in toto, it appears that the appellant No.1 has no intention to kill the deceased rather the death is result on a sudden provocation and without any premeditation. He further submits that in alternative if the prosecution case is to be accepted in toto, it appears that the appellant No.1 has no intention to kill the deceased rather the death is result on a sudden provocation and without any premeditation. The appellant No.1 is resident of remort tribal area and being tribal the conviction should have been under Section 304, Part-I of the I.P.C. instead of 302 of the I.P.C. In support of his contention he has relied on the decision of the Apex Court in the case of Rampal Singh V. State of Uttar Pradesh reported in (2012) 8 SCC 289 . 7. The learned Addl. Standing Counsel while supporting the impugned judgment and sentence passed by the court below submits that it is well established by the prosecution that the appellant No.1 assaulted the deceased on her chest and other parts of the body and appellant No.2 helped the appellant No.1 to conceal the dead body. He further submits that the charges framed against the appellants are well established by the prosecution from the evidence on record, as such the trial court rightly convicted them, therefore the impugned judgment may not be interfered with. 8. Perused the L.C.R and went through the evidence on record carefully. P.W.5 in his evidence stated the exact verbatism of appellant No.1 Asman Gond while narrating how he has killed the deceased. He stated that on the day of occurrence while the deceased was giving rice to his mother for sanctifying the same by the sorcerer, the rice fell from her hand and again thereafter while she was giving prepared rice to his mother, the rice dekchi fell down from her hands repeatedly. On which he came enraged and assaulted the deceased by fist and kick blows on her belly and chest. She fell down and died. He also stated that he called the other appellant No.2 Durjan. Both of them took the deceased with a view to conceal it, threw it into the well of one Sridhan Gond situated in his land. Later they removed the dead body from the well and threw it in a jute field near Patrapara jungle. The evidence of P.W.5 is consistent and nothing brought out from his cross-examination to discard his evidence. He has stated the confession made by appellant No.1 before him. Such confession was unambiguous and free from suspicious. Later they removed the dead body from the well and threw it in a jute field near Patrapara jungle. The evidence of P.W.5 is consistent and nothing brought out from his cross-examination to discard his evidence. He has stated the confession made by appellant No.1 before him. Such confession was unambiguous and free from suspicious. There was no inducement threat or punish rather it voluntarily true and trustworthy. The appellant No.1 is the husband and the deceased is his wife. His wife is residing with him. The husband is the person who is to explain under what circumstances his wife was missing. None disclosure of where about the wife of the husband while residing together is a circumstances goes against appellant No.1. P.W.6 was declared hostile. 9. P.W.7 is the Medical Officer attached to Hatabharendi C.H.C. He deposed in his examination-in-chief that on 15.11.1995 on police requisition he conducted the post mortem examination of the dead body of Birija Gond W/O-Asman Gond of village Biripur, P.S. Raighar found as follows:- 1. Only the skeleton was available for examination. 2. On dissection of skull from vertebral colon no bony injury or any mark of ligature was found on neck portion 3. Due to advanced stage of decomposition brain matter and membrane found liquefied. 4. No body injury or fractures are determined. 5. No breakage of odonoid process. 6. Cartilaginous process of Tibia lost. 7. Hand and feet were lost. 8. No organ or part of viscera were present. 9. Loose tooth and dry mandible present without injury to alveolar sockets. According to him the nature of the death of the deceased could not be determined. The Forensic report also disclosed the similar fact regarding non-determination of cause of death. 10. It is a fact that the appellants belong to Tribal community. It is obvious that such people are of different mindset and they commit offences on the spur of moment. The appellant No.1 with sudden anger on the spur of the moment assaulted the deceased and there was no premeditation. The Trial Court also noted that the deceased has not given rice repeatedly to the mother of appellant No.1 which enraged the appellant No.1. There was sufficient reason to appellant No.1 to become anger and his anger provoke him to conduct the offence. Normally tempers run high with tribals and often they give vent to their baser instincts without restraint. 11. There was sufficient reason to appellant No.1 to become anger and his anger provoke him to conduct the offence. Normally tempers run high with tribals and often they give vent to their baser instincts without restraint. 11. In the case of State of U.P. vs. M.K.Anthony reported in AIR 1985 SC 48 it was held that there is neither any rule of law nor of prudence that evidence furnished by extra judicial confession cannot be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra-judicial confession a weak piece of evidence. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, thereafter subjecting the evidence of the witness to a rigorous test on his touchstone of the credibility, it if passes the test, the extrajudicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tend to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon. 12. Similarly in AIR 1985 SC 1678 , Narayan Singh & Others vs. State of M.P. it was held that it is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and credibility of the witness who speak to such a confession. 13. This Court in the case of Bisi Chhuria vs. The State reported in 1999 Cri.L.J.1078 discussed regarding admissibility of extra-judicial confession evidence of father and brother of the deceased regarding extra-judicial confession made before them by accused that he killed deceased found to be trustworthy. Merely because they were relatives of deceased is no ground to discard that confession from being admissible. 14. Merely because they were relatives of deceased is no ground to discard that confession from being admissible. 14. 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. 15. The appellant No.1 was the author of the crime and due to sudden anger in the heat of passion, he assaulted the deceased by fist and kick blows not by any weapon. Accordingly offence under Section 302 of the I.P.C has not made out rather it will come under Section 304, Part-I of the I.P.C. Such an attack is without premeditation. 16. In the case of Rampal Singh(supra) where the offender whilst being deprived of the power of self control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, “culpable homicide would not amount to murder”. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case. Section 300 I.P.C. Xxx xxx xxxx Explanation-whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact ?. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case. Section 300 I.P.C. Xxx xxx xxxx Explanation-whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact ?. Xxx xxx xxxx 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 impugned judgment and sentence passed by the learned Sessions Judge, Koraput, Jeypore in S.C. Case No. 43 of 1996. The conviction under Section 302 of the IPC is modified to under Section 304, Part-1 of the IPC. The appellant No.1 was inside the custody for more than ten years. Accordingly, we sentence the appellant No.1 for the period already undergone and the sentence under Section 201/34 of the I.P.C. is confirmed. 18. It reveals from the record that the appellant No.2 has also undergone the substantial period of sentence, as such he is sentenced to suffer rigorous imprisonment for the period already undergone. The bail bond furnished by both the appellants be discharged. Lower Court records along with copy of judgment be sent forthwith to the trial Court.