JUDGMENT A. K. Mishra, J. - In this appeal U/s.383 Cr.P.C., the appellant has assailed his conviction U/s.302 of the Indian Penal Code, 1860 (herein after referred as "I.P.C." for brevity) and the sentence of imprisonment for life and fine of Rs.100/-, in default R.I. for 10 days passed by 3rd Addl. Sessions Judge, Puri in S.T. Case No.99-77 of 2013-10 by his judgment dtd.31.3.2015. 2. Put briefly, the case of the prosecution is that deceased Kalu Behera @ Pintu, accused Kabula Behera and witness P.W.5 Babuli Behera are agnatic brothers. Deceased with his wife and mother were staying at Basudeipur - Gadiupara in a coconut firm of one Jagannath Panda. Deceased had right to sikim tenancy over the same. The elder brother P.W.5 was staying outside. Accused who was staying outside came with his family and constructing a hut near the house of deceased stayed there prior to 2 to 3 months of the incident. Both deceased and accused persons had family dispute. On 09.12.2009 at about 5.30 P.M. deceased while returning from grocery shop in his bicycle, in front of his house, accused dealt sword blows, as a result deceased fell down, struggled and succumbed to the injuries. The request of the wife of the deceased and his mother was not heard by the accused. Soon thereafter accused left the spot with his wife and children taking the sword in a bicycle. At 6.45 P.M. police reached the spot. The wife of deceased got the F.I.R. scribed from P.W.11 at her instance and lodged the same which is Ext.11. Police took up investigation but sent the same to Pipili Police Station for registration. It was registered as Pipili P.S. Case No.213 dtd.09.12.2009 at 7.15 P.M. The investigating officer (P.W.9) took up investigation, visited the spot, apprehended the accused on the next day morning at 5 A.M. and at his instance the weapon of offence, i.e., blood stained sword, was seized from one bush near Pipili - Delanga road. Thereafter the sword and other articles were placed before the Scientific Officer and also forwarded for chemical examination. Inquest over the dead body was made vide Ext.8. At 11.30 A.M. the dead body was dispatched for post mortem examination to District Headquarters Hospital, Puri under Ext.7. P.W.8 - Dr. Subhakanta Ojha conducted post mortem and found the death to be homicidal vide his Post Mortem examination report Ext.6. Inquest over the dead body was made vide Ext.8. At 11.30 A.M. the dead body was dispatched for post mortem examination to District Headquarters Hospital, Puri under Ext.7. P.W.8 - Dr. Subhakanta Ojha conducted post mortem and found the death to be homicidal vide his Post Mortem examination report Ext.6. The doctor had also inspected the recovered sword (M.O.I) on that date and had opined that the injuries found on the dead body of the deceased could be caused by that sword. After completion of investigation charge-sheet was submitted. Learned J.M.F.C., Pipili took cognizance and committed the court to the court of Session. Accused faced trial for the offence U/s.302 I.P.C. 3. The plea of defence is denial simplicitor. 4. In support of its case, prosecution examined 11 witnesses. Defence examined none. Out of prosecution witnesses, P.Ws.1, 2, 3 and 4 are post occurrence witnesses. P.W.5 is the brother of the deceased and accused, who has stated that during incident he was not present in the village. P.W.10 is the informant who is an eye witness. P.W.7 is the Forensic Science Laboratory Officer while P.W.6 is the Scientific Officer, D.F.S.L., Puri. P.W.8 is the Doctor, P.W.9 is the investigating officer and P.W.11, as stated above, is the scribe of the F.I.R. (Ext.11). Prosecution exhibited 11 documents including F.I.R., seizure list, spot map, serological report, post mortem examination report, etc. The seized sword, shirt of deceased and blood stained grass and earth collected from the spot are marked M.O.I to M.O.IV. No document is exhibited from the side of defence. 5. Mr. Sahasransu Sourav, learned amicus curiae engaged on behalf of appellant, strenuously urged that the sole testimony of P.W.10 is not reliable and in absence of corroboration, the same cannot form the basis of conviction. To support his contention he has submitted that the F.I.R. lodged under thumb impression discloses previous enmity which is found to have been suppressed while testifying in the court. He further submitted that the doctor found 5 injuries on the dead body of the deceased which runs contrary to the eye witness P.W.10 that accused dealt blows to left arm, face and neck for which the scratch injury extending from inferior border of right scapula up to left loin, stood unexplained. He further submitted that the doctor found 5 injuries on the dead body of the deceased which runs contrary to the eye witness P.W.10 that accused dealt blows to left arm, face and neck for which the scratch injury extending from inferior border of right scapula up to left loin, stood unexplained. He buttressed his argument by saying that when the mother and sister-in-law who are natural witnesses as per F.I.R., are not examined, adverse inference should be drawn against the prosecution for suppressing the truth. Most importantly he contends that learned Lower Court having clarified that P.W.10, the wife of deceased having contacted marriage to one Subuna Bhoi, her testimony is not trustworthy when prosecution has failed to prove the motive. In support of his contention, he has relied upon the decision reported in , Sujit Biswas Vrs/ State of Assam, (2013) 12 SCC 406 and, Ramji Surjya Padvi and Ors. Vrs. State of Maharashtra, (1983) AIR SC 810 . 6. Learned Addl. Government Advocate Mrs. Saswata Patnaik supported the judgment on the grounds stated therein and submitted that subsequent marriage of widow cannot be an act of unnatural to discredit her testimony which she had seen resulting death of her estranged husband. According to her there is no contradiction between medical evidence and ocular testimony because P.W.10 has categorically stated that accused inflicted deadly blows to the upper left arm, face and neck of the deceased and deceased fell down from the bicycle and in that process the scratch injury on the body of the deceased is a natural outcome of falling on the ground from the bicycle. With regards to non-examination of mother and sister of deceased, learned Addl. Government Advocate has submitted that their non examination is not fatal when the sole eye witness, the wife of deceased, is found to be reliable enough to implicate the accused. On the point of motive, learned Addl. Government Advocate submitted that when the murder is proved by eye witness, the absence of motive is inconsequential. 7. The duty of the appellate court is to consider and appreciate the evidence adduced by the prosecution and arrive at an independent conclusion. It is indisputable here that the deceased Kalu Behera met homicidal death. Government Advocate submitted that when the murder is proved by eye witness, the absence of motive is inconsequential. 7. The duty of the appellate court is to consider and appreciate the evidence adduced by the prosecution and arrive at an independent conclusion. It is indisputable here that the deceased Kalu Behera met homicidal death. Doctor (P.W.8) who conducted post mortem on 10.12.2009 proved Post Mortem examination report (Ext.6) and testified to have found following five ante-mortem injuries:- (i) incised would of size 9.5" X 3.5" X 4" extending from the middle end of neck posteriorly up to mid portion of lower border of chin tailing medially cutting all the tissues including bone (cervical vertebra) clotted blood are found at several places on the wound. (ii) Incised wound of size 6" in length X 2" breadth X 1" in depth extending medial to right ear running transversely up to right side of upper lip of mouth, blood clots are found at several placed on the wound. (iii) Incised wound of size 3" in length X 1" in depth X 0.5" depth present dorsal laterally on the middle 1/3rd of left forearm tailing medially. Blood clots are found inside the wound. (iv) Incised wound of size 2" in length X " in breadth X 1/4" in depth present on left shoulder near supraclavicular fosa. Blood clots are found on the wound. (v) Scratch injury of 11" in size extending from inferior border of right scapula up to left loin. According to the doctor, the cause of death was due to shock resulting from injury to vital organ like spinal cord and from masic hemorrhage. He has also stated that injury no.(i) can be caused if a blow is given either from the back or from the front. He had examined M.O.I and admitted that the injuries noticed could be caused by the sword. According to doctor, the time of death was within 12 to 24 hours from the time of post mortem examination. 8. As to the actual incident, the sole testimony of P.W.10 is pressed into service. She is the wife of the deceased. She has stated that after marriage she was residing at village Makundapur with deceased in a house consisting of one thatched roof and a concrete roof. 8. As to the actual incident, the sole testimony of P.W.10 is pressed into service. She is the wife of the deceased. She has stated that after marriage she was residing at village Makundapur with deceased in a house consisting of one thatched roof and a concrete roof. The accused, who is the brother of deceased, was staying with his wife Mata, one son and one daughter in a thatched hut constructed near their dwelling house. While her husband returned on a bicycle after purchasing grocery items, accused Kabu inflicted deadly blows by means of a sword to the upper left arm, to the face and to the neck and Kalu sustained severe injuries and died instantaneously. She shouted for help. After committing murder, accused with his family members fled away on a bicycle taking that sword. In cross-examination she admits that she was present closer to deceased when he received deadly injuries and no other person was present near the spot. From the above evidence, it is found that eye witness is in variable with medical evidence with regards to scratch injury and incised wound present on dorsal laterally on the middle 1/3rd of left forearm. As the sole eye witness has not detailed the manner of attack, we are persuaded to go through other evidence. The F.I.R. has disclosed family dispute and the presence of the mother and sister at spot. It is noteworthy that deceased is the brother of accused and both families were residing in separate huts close to each other. It does not inspire confidence that soon after the incident accused, his wife, son and daughter (four persons) left the spot in one bicycle carrying the sword. 9. Here comes the evidence of P.W.1 and P.W.3. Both of them stated that both brothers quarreled with each other at about 5.30 P.M. and Kalu died. P.W.3 had seen the dead body with injuries. P.W.2 stated that he found cut injury on his neck and obliquely over his face extending to the forehead. He along with police found accused along with his wife and son near the railway track and police seized the sword under Ext.1 concealed in a thorny bush and after recovery, police recorded statement of accused. P.W.4 stated that accused came 10 to 15 days prior to the incident and stayed in a thatched house adjacent to the house of deceased. P.W.4 stated that accused came 10 to 15 days prior to the incident and stayed in a thatched house adjacent to the house of deceased. P.W.5, the brother of deceased stated that deceased with his mother was staying in the village, accused came prior to 2/3 months of occurrence and stayed there. He is declared hostile and was contradicted with his previous statement that both brothers were quarreling with each other. P.W.9, the investigating officer has admitted that he received the R.I. report disclosing that Madan Mohan Panda (not examined) was the recorded tenant of the spot. What is revealed from above evidence that both brothers were staying in a land not belonging to them and accused came to reside there only few days prior to the incident. Obviously, their strained relationship was flared up on the occurrence day at evening and as stated by P.W.1 and P.W.3, there was an altercation between the accused and deceased just before incident. This sequence of event appears natural. The informant P.W.10 has stated about family dispute in the F.I.R. which was scribed at her instance at spot by P.W.11. Fact remains proved that incident had genesis of an altercation between two brothers. Learned Addl. Sessions Judge, who had occasion to record the evidence, has recorded in the judgment that; "It cannot be brushed aside that just before the murderous attack with sword marked M.O.I there was no provocation made on behalf of the deceased towards the accused persons. It is true that the accused had some grievances for bare necessity of a room for accommodating his wife and children which he could not provide to them. It is true that he might not have got any help from his deceased brother in his quest for providing accommodation with room to his wife and children." But despite such findings, he ignored the same to consider the exception U/s.300 I.P.C. on the ground that accused has not taken any such plea in his statement U/s.313 Cr.P.C. The object of the questioning U/s.313 Cr.P.C. is not to build the case against the accused from his answer and absence of answers. Section 313(3) provides that "the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them." If accused has right to refuse to answer any question U/s.313 Cr.P.C., he cannot be burdened with to disclose specific fact which he believes may harm him. What is connotative from Section 313(3) Cr.P.C. is that if prosecution evidence discloses a plea favourable to accused, the same cannot be withheld on the ground that accused has not taken such plea U/s.313 Cr.P.C. To seek so, is to frustrate the object of Section 313 Cr.P.C. Consequentially, as evidence analyzed establish, we have no hesitation to accept in all probability that prior to assault, there was an altercation between accused and deceased and in a sudden fight, without premeditation, the accused caused injuries and the deceased had sustained injuries, i.e. scratch injury and injury on dorsal not inflicted by accused. The other three injuries were inflicted by accused in the heat of passion without having taken undue advantage. The offence committed is culpable homicide not amounting to murder coming U/s.300 Exception-4, punishable U/s.304 Part-I I.P.C. Hon'ble Apex Court in the case of Ajit Singh Vrs. State of Punjab (Criminal Appeal No(s).2094/2008) Judgment dtd.09.01.2009 (by Larger Bench), where the report of the Post mortem indicated (09) incised wounds, observed that where incident had occurred without any pre-meditation, the fourth exception to Section 300 I.P.C. is attracted. 10. The core of prosecution case is not corroded by the minor discrepancies. We are conscious of the fact that the accused was defended in the trial by State Defence Counsel and the lapses found in conducting trial cannot be used to his detriment. Justice needs to be administered in between poverty and criminality. In the wake of above, the accused - appellant is to be held guilty U/s.304 Part-I I.P.C. and his conviction U/s.302 I.P.C. and sentence thereunder is required to be altered. In the result, the appeal is allowed in part. The conviction and sentence of accused - appellant U/s.302 I.P.C. is altered to one U/s.304 part-I I.P.C. in S.T. Case No.99-77 of 2013-10 and he is sentenced to undergo R.I. for ten years and to pay a fine of Rs.1000/- (one thousand), in default, further undergo R.I. for two months. The period undergone be set off U/s.428 Cr.P.C. L.C.Rs. be returned forthwith. S. K. Mishra, J I agree.