JUDGMENT : A.K. Mishra, J. In this appeal U/s.383 Cr.P.C. the appellant has assailed his conviction U/s.302 IPC and sentence to undergo life imprisonment passed in judgment dated 21.4.2006 in S.T. Case No.49 of 2005 by learned Addl. Sessions Judge, Boudh. 2. Briefly stated, the prosecution case is that deceased, Kesaba Sandha had constructed a house on the public land encroaching public road and accused and informant were facing difficulty in taking bullock cart to their filed. Both parties had inimical terms for that. 2.a On 7.4.2005 at about 5.30 a.m. morning at Village-Sandhapalli the deceased while witnessing the 'Danda Nacha' standing in the village road in front of his house, the accused dealt Tangia blows to his legs. The informant-brother of the deceased rescued the deceased and took him in a vehicle to Manmunda Hospital but on the way he succumbed to injuries. He got FIR written from P.W.3 and lodged the same at Manmunda P.S. at 9 a.m. The same was registered vide Manmunda P.S. case no.36 dated 7.4.2005. The I.O. made inquest over the dead body and seized the Tangia from the spot vide Exhibit-4. Postmortem was conducted. The accused was arrested. After completion of investigation charge-sheet was submitted. The case was committed to the Court of Session. The accused faced trial. The plea of defence was denial simplicitor. 2.b Prosecution examined six witnesses in all. P.W.1 (informant) is the brother of deceased. He is an eye witness to the occurrence. P.W.4 is also an eye witness who is named in the FIR. P.W.2 is the post occurrence witness who proved the seizure Exhibits.3, 4, 5 and 6 including Tangia (M.O-I) and Lungi (M.O.II) of accused. P.W.5 is the Doctor and P.W.6 is the Investigating Officer. No witness is examined on behalf of the defence. FIR, spot map, seizure list and chemical examination report are marked as Exhibits-1 to 13. The weapon of offence seized Tangia is (M.O.I) while the Lungi (M.O.II) was seized from accused and found to have contained blood vide chemical examination report (Exhibit-13). 3. Learned Trial Court believed the evidence of eye witness (P.W.1) as wholly reliable. Relying upon the evidence of Doctor and M.O.1 weapon of offence he concluded that the death of deceased was homicidal in nature. Believing the evidence of P.W.1 and P.W.4, learned trial Court found the accused to be the author of injury on the body of deceased. 3. Learned Trial Court believed the evidence of eye witness (P.W.1) as wholly reliable. Relying upon the evidence of Doctor and M.O.1 weapon of offence he concluded that the death of deceased was homicidal in nature. Believing the evidence of P.W.1 and P.W.4, learned trial Court found the accused to be the author of injury on the body of deceased. Accordingly, he convicted the accused U/s.302 IPC and passed sentence as stated above. 4. The main thrust of submission of learned counsel for the appellant is that the accused having found to have inflicted injury on the leg even while deceased was lying facing upwards and P.W.1 having stated that there was an exchange of words prior to the occurrence, the offence of culpable homicide not amounting to murder is made out for which the conviction U/s.302 IPC should be modified to offence U/s.304 (Part-I) IPC. 5. Learned Additional Government Advocate repealed the above contention stating that as the accused had prior enmity, he could not be said to have no pre-meditation to hack the deceased by way of Tangia (M.O.I) and for that the intention is apparent for offence of murder. 6. We carefully perused record bestowing our thought to the submissions advanced. P.W.1, the brother of deceased has categorically stated that while deceased was witnessing Danda Nrutya standing in front of their house he was brushing his teeth and accused came with a Tangia and assaulted brutally to both the legs of Kesaba by means of said Tangia. Deceased sustained injuries on his legs and fell down. He rushed to the spot. Accused left the Tangia and fled away. He shifted the injured brother in a Jeep to Manmunda Hospital but on the way he succumbed to his injuries. He testified to have lodged FIR (Exhibit-1) after getting scribed from P.W.3. He has also stated that for encroachment of a road on the Government land they were not able to carry their bullock cart to the field and when they raised protest there was an exchange of words between accused on the one hand and he and his deceased brother on the other hand. He has testified that this exchange of words took place prior to occurrence. He has testified that this exchange of words took place prior to occurrence. In cross-examination he has stated that after getting first Tangia blow deceased fell down facing upwards and while deceased was lying in that position, the accused dealt two to three Tangia blows continuously. He identified the Tangia (M.O.1). He has stated that he took half an hour to arrange the Jeep and then took further half an hour to reach at Manmunda Hospital by the Jeep. P.W.4 corroborates the testimony of P.W.1. She has added that getting the assault when deceased fell down on the ground accused again assaulted to his left leg. Doctor (P.W.5) proved the postmortem report (Exhibit.7) stating that the cause of death was due to massive haemorrhage leading to shock and death. He found the following injuries:- (i) Lacerated wound 3" below right knee joint-8" x 3" x 3" with upper end of Tibia and fibula being fractured, (ii) Lacerated wound extending from left knee joint to left foot 14" x 32 x 2" along the anterior boarder of left leg, (iii) Incised wound on the left thigh above size 3" x 2" x 2", (iv) Lacerated wound along median aspect of left foot above size 4" 1" x 1", (v) Lacerated wound on the left foot lateral side 5" x 1" x 1" 6.a He has deposed that the M.O.1-axe was identified by him and the injuries found on the deceased could be possible by that weapon. He has categorically admitted in the cross-examination that in his report he has not mentioned as to whether injuries were ante-mortem or homicidal in nature. As per doctor, since there was a fracture of Tibia and Fibula, it was quite obvious that there was destruction of artery and only injury no.3 was possible by the sharp edge while other injuries were possible by blunt edge. The Investigating Officer (P.W.6) has proved the spot map (Exhibit.10) and testified that he seized the blood stained Tangia from the spot village Danda and arrested the accused on that date at 2 P.M. 7. From the above evidence, it is clearly proved that the death of deceased was homicidal in nature and injuries were inflicted by M.O.I. On closure scrutiny of medical evidence it transpires that all the injuries were on the legs. From the above evidence, it is clearly proved that the death of deceased was homicidal in nature and injuries were inflicted by M.O.I. On closure scrutiny of medical evidence it transpires that all the injuries were on the legs. All the lacerated four injuries were below the knee while only one incised wound on the left thigh. It is clearly stated by P.Ws.1 and 4 that when deceased fell down facing upwards the accused assaulted on his legs. This is prognostic of intention of accused that he had not used the sharp side of axe to give fatal blows to the vital parts of the body above the thigh, particularly when the deceased was armless. The use of blunt side of the axe and that too only on the legs below the knee indicates that accused had no intention to cause culpable homicide amounting to murder. 8. Enmity is a double edged weapon. It can be a ground for false implication and it can also be a ground for assault. Keeping the prior enmity in the background, the survey of evidence of the brother of deceased (P.W.1) indicates that there was an exchange of words prior to the occurrence. The blunt side of the axe is used when deceased was lying facing upwards the injury was caused below on the legs only. P.W.1 (informant) admittedly took more than one hour to shift the injured to the hospital and the deceased died due to haemorrhage. The sole testimony (P.W.1) is reliable and can be the basis of conviction as per decision Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 . 9. From the use of the blunt side of the weapon by the accused and the part of body to inflict injuries chosen in the backdrop of exchange of words, we find reasonable to conclude that the incident had occurred without any premeditation. The accused had not acted in a cruel or unusual manner. We are of the view that in the facts of the case the fourth exception of Section 300 IPC is attracted and offence U/s.304 (P-I) IPC is made out. We draw support from a decision by larger Bench of Hon'ble Supreme Court decided on 9.1.2019 in Criminal Appeal No.2094 of 2008, Ajit Singh v. State of Punjab. 10. We are of the view that in the facts of the case the fourth exception of Section 300 IPC is attracted and offence U/s.304 (P-I) IPC is made out. We draw support from a decision by larger Bench of Hon'ble Supreme Court decided on 9.1.2019 in Criminal Appeal No.2094 of 2008, Ajit Singh v. State of Punjab. 10. For the reasons stated above the conviction of accused U/s.302 IPC and sentence passed thereon are set aside. Instead, the accused is held guilty U/s.304 (P-I) IPC and is sentenced to undergo 10 years of rigorous imprisonment. No sentence of fine is imposed as the accused is under incarceration. 11. The appeal is disposed of in the above terms. The accused be released, if he is not otherwise required in any other case. 12. LCRs be returned to the lower court accordingly. I agree. S.K. Mishra, J.