JUDGMENT K.R. MOHAPATRA, J. - The appellant in this appeal seeks to assail the judgment and order of conviction dated 26th September, 2000 passed by learned Additional Sessions Judge, Balasore in S.T. Case No. 26/105 of 1998 (arising out of G.R. Case No. 1301 of 1997 of the Court of learned S.D.J.M., Balasore corresponding to Chandipur P.S. Case No. 38 dated 1.10.1997) convicting the appellant under Section 302 and 307 of Indian Penal Code (for short, ‘IPC’) and sentencing him to undergo rigorous imprisonment for 7 years for commission of offence under Section 307 IPC and life imprisonment for commission of offence under Section 302 IPC. Both the sentences are directed to run concurrently. 2. Prosecution was launched on the basis of the FIR lodged in Chandipur Police Station by one Basanta Kumar Behera (PW-2), the brother of the deceased, namely, Basanti Behera, informing that the marriage between the his sister (the deceased) and the appellant was solemnized 12-13 years prior to the date of the incident. The appellant was then serving as a Peon at Chandipur Military Engineering Service and was residing with the deceased and children, namely, Ashalata (the injured daughter) and two male children in the official quarter provided to him in the Defence Colony at Chandipur. On 15.10.1997, when the informant was on duty, he was informed by his younger brother, namely, Prasanta Behera that the appellant has murdered his wife, namely, Basanti by means of a ‘Katuri’ (MO-1). The appellant had also brutally assaulted his daughter, namely, Asalata with the said weapon. On receipt of the information, the informant rushed to the house of the appellant and found huge gathering in from of the quarter of the appellant. On reaching the spot, the wife of one Sudhakar Prusty, namely, Satyabhama Prusty (PW-4) who was a neighbor of the appellant and few others present there informed him that on the ill-fated day at 11.00 AM, there was a quarrel between the appellant and his wife-Basanti and immediately thereafter the appellant came out of his house and disclosed before opposite party No. 4 that he has killed his wife by means of ‘Katuri’ and also assaulted his daughter. Disclosing the same, the appellant left the spot towards Police Station wearing ‘Lungi’ and ‘Ganji’ containing blood stains. Disclosing the same, the appellant left the spot towards Police Station wearing ‘Lungi’ and ‘Ganji’ containing blood stains. Entering into the house of the appellant, PW-2 found the dead body of his sister was lying on the floor with bleeding injuries on the backside of her neck and hand. The weapon of offence (blood stained ‘katuri’) was lying under the cot. He was also informed that the daughter of the Appellant, namely, Ashalata had been shifted to Balasore Government Hospital in un-conscious state for treatment. Thereafter, informant rushed to the Chandipur Police station and lodged the report at about 1.00 PM. 3. As the FIR revealed a cognizable case, the OIC, Chandipur PS (PW-10), registered the case as Chandipur Police Station Case No. 38 dated 15.10.1997 under Sections 302/307 of IPC and took up investigation. During the investigation, PW-10 examined the informant (PW-2), visited the spot, conducted inquest over the dead-body of the deceased-Basanti in presence of witnesses and prepared inquest report (Ext.10). Thereafter, he sent the dead-body to District Headquarters Hospital, Balasore for postmortem under dead-body challan Ext. 11 accompanied by a constable. He also seized one sharp-edged ‘Katuri’ in presence of the witnesses, a portion of which was containing blood stains. He also seized a piece of cement floor containing blood stains as well as sample cement floor under seizure list Ext. 1. He also issued injury requisition of the injured Ashalata vide Ext. 4/2. On the date of incident, the appellant was arrested on his surrender before the Chandipur Police Station and the blood stained ‘Lungi’ and ‘Ganji’ were seized vide Ext. 13 in presence of witnesses. The blood stained apparels of the deceased along with earrings were seized vide seizure list Ext. 7. The seized pair of earrings was given in zima of the informant under Zimanama (Ext. 3). On 16.10.1997, the appellant was forwarded to the Court of learned SDJM, Balasore. After receipt of the postmortem report under Ext. 20. The seized ‘katuri’ (MO-I) was sent to Dr. B.C. Samantrary (P.W.11) for his opinion as to whether the injury of deceased Basanti and daughter-Ashalata could be possible by means of MO-I. The ‘Katuri’ and blood stained clothes of the appellant and the deceased were also sent to the State Forensic Science Laboratory, Rasulgarh for examination vide Ext.15. In course of investigation, the bed head ticket of Ashalata Samal was seized vide Ext. 6. In course of investigation, the bed head ticket of Ashalata Samal was seized vide Ext. 6. The quarter allotment register of the appellant was also seized vide Ext. 16 and was left in Zimanama of the concerned authority vide Ext. 17 the attendance register containing the name of the appellant was seized and left in zima of the concerned official vide Ext. 19. On completion of investigation, chargesheet under Sections 302/307 of IPC was filed against the appellant. The case was thereafter committed to the Court of Sessions. Subsequently, it was transferred to the Court of Additional Sessions Judge, Balasore for trial. 4. The plea of defence is complete denial of his complicity in the crime. 5. The prosecution, in order to bring home the charges leveled against the appellant, examined as many as 11 witnesses and exhibited the documents referred to above. The weapon of offence (MO-I) along with apparels of the appellant as well as the deceased were also produced before the trial Court and marked MO-I to MO-VI. PW-1, namely, Ratnakar Behera, was working as an Mechanic in Military Engineering Services, Baliapal PW-2 is the brother of the deceased and the informant in this case, PW-3 is the father of the deceased, who has been declared hostile by the prosecution and was examined under Section 154 of the Indian Evidence Act. PW-4, namely, Satyabhama Prusty, is a nebighbour of the appellant, who had narrated the incident to PW-2 after his reaching at the spot. PW-5 is Dr. Shasi Narayan Das, who examined the injured daughter of the appellant, namely, Ashalata, PW-6 is the Clerk of the District Headquarters Hospital, Balasore from whom the IO seized the bed head ticket of Ashalata; PW-7 is the injured witness-Ashalata Samal, PW-8 is the Police Constable, who had accompanied dead body for postmortem examination, PW-9 is the Constable of the Chandipur Police Station, who had carried the appellant to District Headquarters Hospital for his medical examination, PW-10 is the Investigating Officer and PW-11 is Dr. Bishnu Prasad Samantaray, who has conducted autopsy over the dead body. 6. Learned trial Curt, taking into consideration the statements of witnesses, exhibits on record as well as the facts and circumstances of the case, passed the impugned judgment of conviction and sentence. Bishnu Prasad Samantaray, who has conducted autopsy over the dead body. 6. Learned trial Curt, taking into consideration the statements of witnesses, exhibits on record as well as the facts and circumstances of the case, passed the impugned judgment of conviction and sentence. Learned counsel for the appellant assailing the impugned judgment and order of conviction and sentence, submitted that the same is not sustainable as there are serious contradictions in the evidence of the witnesses. None else except the injured daughter, the appellant is alleged to have seen the occurrence, who was aged about 10 years at the time of occurrence and 12 years at the time of deposing before the Court. Learned trial Court has not followed the procedure for recording of evidence of child witness. The evidence of PW-7 with regard to the incident has no independent corroboration. The appellant was not mentally sound at the time of occurrence. He had no ill-feeling with his wife or daughter. Immediately after the incident, he rushed to the Police Station and surrendered himself, which disclosed that he had no intention to commit the crime. 7. There is no material to show that the blood stained apparels and the weapon of offence-MO-I as well as wearing apparels (MO-II to MO-VI) were of the deceased and the appellant and the same contained human blood. The father of the deceased has clearly stated in his evidence that he does not have any knowledge about the occurrence. As such, there is a serious doubt with regard to the involvement of the appellant in the crime. These materials were not taken into consideration by learned trial Court, which has ended in serious miscarriage of justice. In the alternative, he submitted that even if the prosecution case is accepted in to it would end in conviction under Section 304 Part-II I.P.C. and not under Section 302 I.P.C. The injuries of injured- Ashalata might have been caused in the process of giving assault to the deceased. Hence, he prayed for setting aside the impugned judgment, order of conviction and sentence. 8. Learned Additional Standing Counsel for the State, on the other hand, strenuously argued that there is no material contradiction in the evidence of the witnesses. Only because there is no independence corroboration and P.W.7 is a child witness, her statement cannot be discarded outright if the same is otherwise credible, cogent and trustworthy. 8. Learned Additional Standing Counsel for the State, on the other hand, strenuously argued that there is no material contradiction in the evidence of the witnesses. Only because there is no independence corroboration and P.W.7 is a child witness, her statement cannot be discarded outright if the same is otherwise credible, cogent and trustworthy. There cannot be independent corroboration to the testimony of PW-7 taking into consideration the circumstances under which the crime was committed. It was in the official quarter of the appellant where the appellant, his wife and children were residing. There is no allegation of enmity of the appellant with P.W.4, who was a neighbor of the appellant. So there was no occasion on the part of PW-4 to depose against the appellant. Further, immediately after the incident, she narrated the incident before the brother of the deceased. The evidence of Medical Officers, namely, P.W.5 and PW-11 amply corroborated the prosecution case. Since the occurrence took place in the official quarters of the appellant, he (the appellant) had special means of knowledge of the incident. However, he has not offered any explanation to the injuries inflicted on his wife and his daughter. Taking into consideration the totality of the facts and circumstances of the case, learned Additional Sessions Judge has rightly convicted the appellant and passed the impugned judgment which needs no interference. 9. There is no dispute to the fact that death of Basanti, the wife of the appellant, was homicidal in nature. P.W. 11, the Doctor, who conducted autopsy over the dead body of Basanti, found the following injuries on the dead body:- “My findings are as follows:- One incised wound 3" x 1" ½ On the right forehead. Another incised wound – 3" x 1/2" x 1/2" front of left ear. Lacerated wound – 8" x 4" x 1" in the neck with extensive laceration with under lined muscles and bones. “ Incised wound – 8" x 4" x 4" in the left elbow with fracture of left elbow with fracture of left radius. Incised wound – 2" x ½ x ½ “ on the left wrist.” The cause of death was shock and heommarahage due to the injuries on the vital organs spinal cord. He also examined injured-Ashalata on 15.10.1997 and found the following injuries on her person. Incised wound – 2" x ½ x ½ “ on the left wrist.” The cause of death was shock and heommarahage due to the injuries on the vital organs spinal cord. He also examined injured-Ashalata on 15.10.1997 and found the following injuries on her person. “(i) multiple incised wound in the face 5 numbers each measuring about 5”x 1" x ½ “ longitudinally and transversely placed including forehead, maxilla and eyes. (ii) there were 3 nos. of incised wound of about 3" x 1"x 2" over lips. There is one incised on the left foot of about 4" x 2" x 1". (iii) Another incised wound on the right leg of about 7" x 2" 1".” He also opined that the injuries on the dead body could be possible by M.O.I. In his deposition, he testified that the Police made requisition of MO-I vide Ext. 14 with query as to whether the injuries on the deceased and the injured-Ashalata could be possible by M.O. 1. Vide Ext. 14/2, P.W. 11 gave his opinion in the affirmative. Due to severity of injuries those Ashalata received, she was admitted to Female Surgical Ward at 12.30 P.M. on 15.10.1997. In his cross-examination, P.W.11 at para-12 has categorically deposed that the condition of injured- Ashalata was very serious, so he sent her to the O.T. immediately. Nothing substantial could be brought out from the mouth of P.W.11 in his cross-examination to discredit his testimony except the fact that “…. The sharp cutting injuries in the person of Ashalata may be possible by her fall from a distance on sharp cutting objects.”, which is not the case of the defence, as no such question was put to Ashalata (PW-7) by the defence. P.W.7 (the injured daughter of the appellant) is the only eyewitness to the occurrence. She was aged about 12 years on the date of her examination in Court. before scrutinizing her evidence, it would be profitable to discuss the law on this issued. Hon’ble Supreme Court, in the case of Rameshwar Vs. State of Rajasthan, reported in AIR 1952 SC 54 held as follows: “11. She was aged about 12 years on the date of her examination in Court. before scrutinizing her evidence, it would be profitable to discuss the law on this issued. Hon’ble Supreme Court, in the case of Rameshwar Vs. State of Rajasthan, reported in AIR 1952 SC 54 held as follows: “11. I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness maybe seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate. In the present case, it is plainn that the learned Judge had the proviso in mild because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he raised the point the Judge would doubtless have made good the omission. I am of opinion that Mst. Purni was a competent witness and that her evidence is admissible. In (1) 14 Beng. L.R. 294 F.N. (2) (1907) 10 O.C. 337 the Privy Council case which I have just cited, their Lordships said - - “ It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness” (emphasis supplied) Thus, the Presiding Officer, who records the evidence of a child has to judge the mental capacity of the child to understand the question and give National answer. He/she must understand the sanctity of oath. In other words, he/she must understand the effect of telling a lie. Learned trial Court, before recording her statement on oath, although found that she was not intelligent, but she was able to understand the question and answered rationally. He was also of the opinion that P.W. 7 understood value of her oath and consequence of speaking lie. In other words, he/she must understand the effect of telling a lie. Learned trial Court, before recording her statement on oath, although found that she was not intelligent, but she was able to understand the question and answered rationally. He was also of the opinion that P.W. 7 understood value of her oath and consequence of speaking lie. On perusal of the evidence of P.W.7, it appears that she understood the questions correctly and answered the same rationally. She, in her evidence, categorically deposed that “…. My father killed my mother by assaulting with a Katari. Hearing hullah, of my mother inside the house I went inside and saw my father was assaulting my mother by Katari. I went to rescue my mother and caught hold of her. My father dealt blows to me by Katari. My father cut my right hands and my left hand little finger and dealt blows on my face over right eyebrow. I lost my right eye. My right hand was cut from the wrist and so also the little finger of my left hand (the witness showed her left hand and right hand, from the wrist was found to have been totally cut and removed and so also the little finger of the left hand). I lost my sense having sustained bleeding injuries. I regained sense in the Hospital.” In cross-examination, she categorically denied the fact that the appellant had turned mad at the time of the incident. She also denied the suggestion to the effect that the appellant was aimlessly talking and creating hulla like a mad man. Nothing more was asked to her in the cross-examination to dislodge the credibility of her testimony. The defnece had not also raised any question with regard to her competence to lead evidence before the trial Court. Thus, her testimony; is admissible in evidence. The same is also reliable and trustworthy. P.W.4, the neighbour of the appellant, also supported the prosecution story in all material particulars. She was not cross-examined. P.W.2, the informant, who is the brother of the deceased, has vividly described the incident. In his cross-examination, he categorically deposed that the “the relationship between accused and deceased was good before the death of the deceased. Accused is my brother-in-law. He was in visiting terms with me and he was also going to our house. She was not cross-examined. P.W.2, the informant, who is the brother of the deceased, has vividly described the incident. In his cross-examination, he categorically deposed that the “the relationship between accused and deceased was good before the death of the deceased. Accused is my brother-in-law. He was in visiting terms with me and he was also going to our house. I have got no personal knowledge regarding the actual incident of assault to the deceased and her daughter. I knew the incident from Satyabhama and accordingly I reported in the P.S. ……… When I came to the P.S. my brother-in-law (accused) was in the Police Station. I did not ask him anything regarding the incident at the P.S.” P.W.10, the Investigating Officer also elaborated the manner in which he conducted the investigation. Nothing material could be brought out from his mouth in cross-examination to raise doubt with regard to the procedure as well as materials collected during investigation. His evidence is cogent and trustworthy. P.W.3, the father of the deceased, did not support the case of the prosecution and was examined by the prosecution under Section 154 of the Indian Evidence Act. On his examination under Section 154 of the Indian Evidence Act, P.W.3 deposed as following: “I was examined by the investigating police officer. It is not a fact that I stated before the I.O. as follows: “that my daughter Basanti complained before me that accd. Was abusing and ill treating her. I saw my grand daughter (the daughter of my daughter and accused) had injury on her hand, forehead, near the left eye. Ashalata Samal d/o accused had injury on her head and hands. She said that she was assaulted by her father by Katuri. I learnt from Ashalata that her father killed her mother by Katari. She also said that her mother died on account of assault by Katari.” In his cross-examination by the defence, P.W.-3 said that he had learnt about the incident in detail from Ashalata in the hospital. Though P.W.3 does not support the case of the prosecution, his statement under Section 154 of the Indian Evidence Act can be taken into consideration for the purpose of scrutinizing the materials on record. 10. Though P.W.3 does not support the case of the prosecution, his statement under Section 154 of the Indian Evidence Act can be taken into consideration for the purpose of scrutinizing the materials on record. 10. In order to analyze the contention of learned counsel for the appellant to the effect that the prosecution case, if accepted in toto, would not end in conviction under Section 302 of IPC, we have to keep in mind that in the scheme of Indian Penal Code “culpable homicide is genus and ‘murder’ is specie. Every murder is culpable homicide, but not vice versa. In the case of State of Andhra Pradesh Vs. Rayavarapu Punnayya, reported in (1976) 4 SCC 382 , where the Hon’ble Supreme Court held as under: “In the scheme of the Penal Code, ‘culpable homicide’ is the genus and ‘murder’ is its specie. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide’ sans ‘special characteristics of murder’, is ‘culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is what may be called,, ‘culpable homicide of the first degree’. This is the greatest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is, also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.” Further, in the case of Nankaunoo Vs. State of U.P., reported in (2016) 3 SCC 317 , Hon’ble Supreme Court at paragraph 11 held as follows: 11. Intention is different from motive. It is the intention with which the act is done that makes a difference is arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Intention is different from motive. It is the intention with which the act is done that makes a difference is arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering the clause ‘thirdly’ of Section 300 IPC and reiterating the principles in Virsa Singh’s case, in Jai Prakash v. State (Delhi Administration) (1991) 2 SCC 32 , para (12), this Court held as under:- “Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, para 7) “ These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case, AIR 1958 SC 465 for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law”. The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove. (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words Clause. Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.” Thus, it is clear from the above case laws that the third clause of Section 300 IPC consists of two parts. In the first part, it must be proved that there was an intention to inflict injury that is present and under the second part, it must be proved that the injury was sufficient in ordinary course of nature to cause death. Sufficiency of the injury to cause death has to be proved by the prosecution and cannot be inferred. Thus, in absence of the proof by the prosecution that the injury on the person of the deceased was sufficient in the ordinary course of nature to cause her death, the case cannot be covered under Section 300 IPC. Sufficiency of the injury to cause death has to be proved by the prosecution and cannot be inferred. Thus, in absence of the proof by the prosecution that the injury on the person of the deceased was sufficient in the ordinary course of nature to cause her death, the case cannot be covered under Section 300 IPC. In the instant case, in order to prove as to whether injuries on the person of the deceased is sufficient in ordinary course of nature to cause death of the deceased has to be assessed from the evidence of PW-11, the doctor who conducted the postmortem examination. A close reading of his evidence does not reveal that injuries inflicted by the appellant to the deceased are sufficient in the ordinary course of nature to cause her death. The prosecution having failed to prove that injuries on the body of the deceased is sufficient, in ordinary course of nature, to cause death, it can be safely said that the appellant has committed culpable homicide of his wife, which does not amount to murder. 11. The narration of the incident in the F.I.R. as well as evidence on record reveals that there was an altercation between the appellant and his wife (the deceased) and immediately thereafter, the appellant dealt fatal blows to the deceased. Hearing shout, when P.W.7 (the injured) entered into the house, she saw the appellant was assaulting her mother by means of M.O.I. Thus, in order to rescue her mother she caught hold of her mother and received the injuries as aforesaid. From assessment of the evidence in its entirety, it transpires that for some reason there was an altercation between the appellant and his wife. Being enraged, the appellant brought out the M.O. 1 and dealt successive blows to his wife, which were fatal. Severity of the injuries both on the deceased and the injured suggest that the appellant had the knowledge that the injuries inflicted by him in ordinary course of nature would cause death of his wife and the daughter. But, at the same time, the assault by the appellant to his wife and daughter was due to grave and sudden provocation. 12. In that view of the matter, while confirming sentence under Section 307 I.P.C. and sentence passed thereunder, we set aside the conviction and sentence of the appellant under Section 302 IPC. But, at the same time, the assault by the appellant to his wife and daughter was due to grave and sudden provocation. 12. In that view of the matter, while confirming sentence under Section 307 I.P.C. and sentence passed thereunder, we set aside the conviction and sentence of the appellant under Section 302 IPC. We convict him under Section 304 Part-I IPC and sentence him to undergo rigorous imprisonment for 10 years. The sentences in respect of the aforesaid offences are directed to run concurrently. It is submitted at the Bar that the appellant has surrendered on 15.10.1997 and since then, he is in custody. As such, the appellant is in jail custody for more than 20 years. In that view of the mater, the appellant be set at liberty forthwith, unless his detention is required in any other case. The appeal is allowed in part. L.C.R. be sent back immediately. Appeal allowed in part.