The offence committed was culpable homicide not amounting to murder u/s. 304 Part I, IPC as the accused did not intend to cause death but only such bodily injury as was likely to cause death.

HANSARIA, C. J.

( 1 ) THE two appellants having been convicted u/s. 302/34, IPC and each of them having been sentenced to undergo R. I. for life have preferred this appeal.

( 2 ) THE occurrence which had seen the death of Chaitan Kar had taken place on 22- 11-1984 at about 8 a. m. at Marichkote Chhak of Puri town. At the relevant time deceased Chaitan had come to take tea in the shop of P. W. 6 Gangadhar Panda. After having taken tea, Chaitan proceeded towards the pan shop of Arakhit, father of P. W. 10. At that point of time, accused Purna arrived at the spot putting on a napkin on his left shoulder. He was then accompanied by the co-accused Braja who had covered himself with a Chadar. So coming , Purna brought out a Farsa from his armpit and dealt a blow by means of the said Farsa on the left side of the neck of Chaitan. At this point of time accused Braja brought out a Bhujali from underneath his Chadar and dealt a cut blow on the left leg of Chaitan who was lying on the ground. Accused Purna then dealt a further blow with the Farsa on the right foot of Chaitan. This blow was so severe that the right foot was almost severed from the leg. Chaitan started profusely bleeding. The two accused then came to the main road and Purna started threatening the bystanders saying that anybody who would be a witness would be cut dead. This threatened the neighbouring shopkeepers who closed their shops and went away out of fear. The two accused then left the place of occurrence carrying their weapons. Chaitan remained lying at the place of occurrence in agony till his son P. W. 1 Suresh was informed about the occurrence by P. W. 5 which led the former to come to the spot. Chaitan then stated to P. W. 1 that the cut injuries had been caused on his person by accused Purna and Braja. Soon thereafter, Chaitan was removed to the hospital in a rickshaw wherein he was admitted, and on arrival of the police there Suresh, P. W. 1, narrated the occurrence to the police officer who recorded the First Information Report which set the police in action. Initially, a case u/ Ss. 326 and 327 read with S. 34, IPC was registered which was converted into one u/s. 302/34, IPC after Chaitan breathed his last in the hospital on 10-12-1984 around 3-30 p. m. After completion of the investigation, the two accused were booked for trial under the aforesaid sections of law. In course of the trial, the prosecution examined 19 witnesses of whom ultimately P. Ws. 4 and 16 stood with the prosecution and deposed as eye witnesses to the occurrence. Most of the other unofficial witnesses, except P. W. 1, were declared hostile. The learned trial Court placing reliance mainly on the evidence of P. Ws. 4 and 16, apart from the dying declaration which was recorded in the hospital by the Investigating Officer, convicted and sentenced the two appellants as aforesaid.

( 3 ) AS the conviction is primarily based on the evidence of P. W. 4 Ramachandra and P. W. 16 Bibhudatta who claimed to have seen the occurrence, it would be in the fitness of things to see what the two witnesses deposed in the court.

( 4 ) P. W. 4, who at the relevant time was the Jatri Gumasta, was taking his tiffin at a distance of about 15 cubits from the shop of Gangadhar. This was at about 6-30 or 7 a. m. The witness then deposed about the arrival of the two accused and the assault by them on the person of Chaitan as noted in the first part of the judgment. The witness also testified about the threats to the witnesses by accused Purna and the closing of shops by the neighbouring people and removal of Chaitan in a rickshaw from the spot to the hospital.

( 5 ) MR. Mohanty would not like us to accept P. W. 4 as a witness to the occurrence inasmuch as he was standing at the relevant time facing the shop of Gangadhar as admitted by the witness in cross-examination whereas the assault had taken place in front of the shop of Arakhita. This submission has been advanced after drawing our attention to the spot map,