The conviction was modified from Section 304(Part-II) to Section 325 of IPC, establishing that while the actions resulted in serious injury, they did not demonstrate the intent necessary for murder.

JUDGMENT :

S.S. Mishra, J.

In this appeal, the appellants have challenged the judgment of conviction and order of sentence dated 08.08.1995 passed by the learned Sessions Judge, Balangir in Sessions Case No.41 of 1995, whereby the learned Trial Court has convicted the appellants under Section 304(Part-II) read with Section 34 of the I.P.C and sentenced them to undergo rigorous R.I. for five years each.

2. Heard Mr. Kirtan Badhei, learned counsel along with Mr. Subham Ghosh, learned counsel appearing for the appellants and Mr. Ashok Kumar Apat, the learned Additional Government Advocate appearing for the State.

3. The prosecution case in terse and brief is that on 19/20.08.1994 at about 1.30 A.M., P.W.1-Urmila Meher, wife of deceased Chintamani Meher submitted a written report before the O.I.C., Patnagarh Police Station alleging that, at about 5.30 P.M., her husband had been to their land locally known as “Rangalduli” where they had transplanted the paddy plants. After half an hour, Rabi Meher (P.W.3) came to her and told that Chintamani Meher was being assaulted by the accused persons mercilessly. Having been so informed, she had her grand- daughter (P.W.4) ran to their “Rangalduli” where they found that Chintamani Meher was coming leaping with severe bleeding injuries on different parts of his body. On being asked, he told that when he went to their “Rangalduli”, he found accused Satya Narayan had closed the opening of the land to stake the water. When he removed the obstruction, the accused persons came there. When accused Satyanarayan assaulted him by means of a spade, the other two accused persons also assaulted by spade. The other two accused persons assaulted him by means of tangias. They brought Chintamani to their house and gave him first aid, but when gradually the condition of Chintamani became serious, they brought him to Patnagarh and admitted in the hospital of Patnagarh.

4. The plea of the accused persons is of complete denial. The accused persons without disputing the injuries on the person of the deceased pleaded that the accused Satyanarayan Meher being the owner of “Rangalduli” was in possession of the same. When he found that the deceased has made the opening so as to divert the water of “Rangalduli”, they raised protest, while Chintamani was running away, he fell down over the stones lying in the opening and sustaining injuries but they are neither the assailants nor the murderers.

5. The prosecution has examined seven witnesses in support of its case as against two D.Ws. examined by the accused person. Out of the witnesses examined by the prosecution, P.W.1 is the widow of the deceased. P.W.4 is their grand-daughter. P.W.3- Rabi Meher though according to the prosecution was the only eye witness to the incident, but when he did not support the prosecution case, he has been declared as hostile witness. P.W.2- Sumitra Meher was a post occurrence witness and a witness to the inquest when the I.O. held the inquest over the dead body of the deceased and sent for post-mortem examination. P.W.5 was the doctor, who has not only medically examined the injured on police requisition while deceased Chintamani was alive, but also has conducted the post mortem examination on the dead body of the deceased when he died. When Ext.2 is the injury report, Ext.3 is the post mortem report, rest P.Ws. are the police officers, who have investigated the case and they have submitted the charge sheet.

6. On the basis of the materials placed before the learned trial Court by the Investigating Agency by way of