JUDGMENT

CHANDRAMAULI KR. PRASAD, J.

State of Orissa, aggrieved by the judgment and order dated 1st September, 2009 passed in Criminal Appeal No.274 of 1997 whereby the Division Bench of the High Court has altered the conviction of the respondents from Section 302/34 to Section 304 Part II of the Indian Penal Code (hereinafter to be referred to as ‘the IPC’), has preferred this Special Leave Petition.

Leave granted.

In the present appeal, as we are concerned with the nature of the offence said to have been committed by the respondents (hereinafter to be referred to as ‘the convicts’), we shall refer to only those facts which are necessary for decision on the said issue. Occurrence in the present case had taken place in Raghunathpali, a hamlet within the district of Sambalpur in the State of Orissa. As usual, on 11th October, 1995 Mohini Naik and her father, Tikeshwar Naik were sleeping at their home in separate rooms adjoining each other. When the entire village was fast asleep, the convicts came to their house at 11.00 P.M. and knocked the door in which Mohini, the rustic villager was sleeping. She was asked to open the door of her room. She could recognize the convict Khageswar from