JUDGMENT:- This is an appeal by the appellant, against his conviction under Section 304 Part II of the Penal Code. The sentence passed by the learned Sessions Judge is 8 years' R.I. and a fine of Rs. 300/- and, in default of payment of fine, to undergo further R.I. for 2 months. The charge against the appellant at the trial was that on or about 5th June, 1968 at about 7 a.m. at Bandora village he committed murder by intentionally or knowingly causing death of Fondu alias Babuli Vithu Naik, and thereby committed an offence punishable under Section 302 of the Penal Code. There is also the application by the State for enhancement of the sentence passed. According to the State the conviction should have been under Section 302 of the Penal Code.

2. The prosecution case, in a nutshell, is that the appellant and the deceased were known to each other for some period before the deceased was assaulted by the appellant with a spade on 5th June, 1968, resulting in multiple injuries. The deceased was a sepoy employed by the Shanta Durga Temple Committee. In 1965 the appellant was granted the fishing rights of the sluice gate of a certain field belonging to this temple. In exchange the a