JUDGMENT : P.K. Mohanti, J. - The Appellant and five others were jointly tried on a charge u/s 302/34, Indian Penal Code for having caused, in furtherance of their common intention, the death of one Dukhabandhu Jena of village Damal under Parjang Police Station in the district of Dhenkanal. After trial, the Appellant was convicted u/s 302, Indian Penal Code and sentenced to undergo imprisonment for life. The other accused persons were acquitted of the charge framed against them. 2. Prosecution case runs thus: The Appellant is the front door neighbour of the deceased. In the night between 21-9-1976 and 22-9-1976 the deceased woke up for urination and went to the front side of his house. While he was passing urine, the Appellant assaulted him with the blunt side of an axe. The other accused persons, who are relations of the Appellant, arrived there and the Appellant along with the other accused persons dragged the deceased to the Kothaghara of the village where he was detained for the whole night. In the next morning when the condition of the deceased became precarious the Appellant along with Dukhia Behera (since acquitted) took the deceased to his house and left him there when were P.W. 4 Mina, the daughter of the deceased, was alone present in the house. The wife of the deceased had left for the police station to lodge information about the incident of assault which took place in the night. P.W. 4 found her father dead with several injuries on his body. Sapneswar Jena (P.W. 1) who is a nephew of the deceased went to the police station by cycle and lodged F.I.R. at 12 noon. The officer-in-charge of the Police Station (P.W. 10) proceeded to the spot, held inquest over the dead body and despatched it for post-mortem examination. On the same day, he arrested the Appellant. While under police custody, the Appellant made a statement leading to discovery of the axe M.O. I from the house of his father-in-law. The Appellant made a judicial confession before the Magistrate (P.W. 11) on 25-9-1976. After due investigation, police submitted charge-sheet against the Appellant and five others under Sections 302/34 and 342, Indian Penal Code. At the trial, the Appellant denied the charge and retracted the judicial confession. 3. The Appellant made a judicial confession before the Magistrate (P.W. 11) on 25-9-1976. After due investigation, police submitted charge-sheet against the Appellant and five others under Sections 302/34 and 342, Indian Penal Code. At the trial, the Appellant denied the charge and retracted the judicial confession. 3. On a consideration of the evidence led by the prosecution, the trial Court held that the death of the deceased was homicidal and that the Appellant was responsible for the same. In the petition of appeal presented through the Superintendent of Jail, the Appellant has challenged the order of conviction as being against the weight of evidence on the record. 4. Mr. S.S. Hota, the learned Counsel appearing amicus curiae for the Appellant contended that on the evidence adduced in the case no offence u/s 302, Indian Penal Code, has been made out. 5. Doctor Chittaranjan Patnaik (P.W. 6) who performed post-mortem examination over the dead body of the deceased on 23-9-1976 found the following injuries: (1) Bruise 4" x 1" on the left side of the back of the chest. (2) Bruise 5" x 1" on the left scapula. (3) Bruise 3" x 3/4" on the right side of the back of the chest. (4) Contusion on the left elbow. (5) Swelling of the lower lid of the left eye. (6) Lacerated injury 1/2" x 1/4" on the left upper eye brow. (7) Bruise 4" x 1" on the left gluteal region. (8) Linear contusion 3" long on the lower third of the left scapula. (9) Abrasion 1 1/2' x 1" on the right side of the back of the chest. (10) Linear contusion 2 1/2" long on the left side of the middle of the neck. In the doctor's opinion, the injuries were antemortem in nature and the death was due to shock resulting from the multiple injuries. 6. The crucial question for consideration is whether the Appellant is responsible for the death of the deceased. The order of conviction is based mainly on (1) the direct evidence of P.W. 8 who is said to be an eye-witness to the occurrence of assault which took place in front of the house of the deceased; (2) the retracted judicial confession (Ext. 10) made by the Appellant before P.W. 11 and (3) some circumstantial evidence. 7. P.W. 5 Labanya Jena is the widow of the deceased. 10) made by the Appellant before P.W. 11 and (3) some circumstantial evidence. 7. P.W. 5 Labanya Jena is the widow of the deceased. She stated, that on the date of occurrence after mid-night her husband woke up for urination and went to the front side of his house. At the same time she also woke up for urination and went towards her cow-shed. At that time she heard the cries of her husband and coming out of the house she found the Appellant dealing axe blows on her husband on the village Danda at a distance of 10 to 12 cubits away from her house. She also heard the Appellant asking the deceased as to why he passed stool in front of his door and the deceased denying the same. She also stated that after committing the assault the Appellant and his companions dragged the deceased towards the Kothaghara of the village. In the morning, she went towards Kothaghara and found that her husband was lying on the Mandap and the accused persons were sitting there. Then she proceeded towards the police station to lodge information, but on the way she was informed by P.W. 1 that the deceased had died. 8. The evidence of P.W. 5 shows that she had ill-feeling towards the Appellant and some of the accused persons. But in our opinion her evidence cannot be lightly brushed aside merely on the ground of her relationship with the deceased or enmity with the accused persons. On a careful scrutiny, her evidence appears to be trustworthy. The statements of P.Ws. 2, 3 and 4 lend ample corroboration to her evidence. 9. P.W. 2 Narahri Bala is a co-villager of the Appellant. He stated that in the night of occurrence he went to the Kothaghara of the village being called by accused No. 4 Punia and found that the deceased and the other accused persons including the Appellant present there. The Appellant told him that the deceased had passed stool in front of his house. But the deceased denied this allegation. The Appellant also told him that he found the deceased passing stool in front of his door and caught hold of him. P.W. 3 Sribatsha Naik is also a co-villager of the Appellant. His house falls on the way leading towards, the Kothaghara. But the deceased denied this allegation. The Appellant also told him that he found the deceased passing stool in front of his door and caught hold of him. P.W. 3 Sribatsha Naik is also a co-villager of the Appellant. His house falls on the way leading towards, the Kothaghara. His evidence was that on the date of occurrence after mid-night the deceased and the Appellant went to his house and knocked at the door. When he opened the door the deceased told him that he had been assaulted by the Keuta people. When he asked the Appellant why he assaulted, he said that the deceased passed stool in front of his house and so he drove him out but did not commit assault on him. The deceased told him that he only passed urine but not stool. Thereafter, the deceased and the accused persons left his house. The evidence of P.Ws. 2 and 3 has not been shaken in any manner. It is not shown that they are either interested in the prosecution or hostile to the Appellant. P.W. 4 Minarani Jena is the daughter of the deceased. She stated that in the morning following the night of occurrence she got up and did not find her parents. She learnt from P.W. 9 Malati Dei that her father had been assaulted by the Appellant and the other accused persons in the previous night. Sometime thereafter the Appellant and the accused, Dukhia Behera brought the deceased to his house. Dukhia brought a mat, laid the deceased on it and covered his body with a chadar. Dukhia told P.W. 4 ironically to massage the body of the deceased with ghee. Some time thereafter she found her father dead and there were injuries on his body. Thus the evidence of P.Ws. 2, 3 and 4 corroborates the version of p w.5 that the deceased was assaulted in the night of occurrence and was taken to the Kothaghara and detained there for the whole night. 10. In his confessional statement Ext. 10 the Appellant clearly admitted that in the night of occurrence he dealt three or foul blows with an axe on the deceased as he passed stool in front of his house. 10. In his confessional statement Ext. 10 the Appellant clearly admitted that in the night of occurrence he dealt three or foul blows with an axe on the deceased as he passed stool in front of his house. He also admitted that after committing assault he took the deceased to the Kothaghara and detained him there for the whole night and on the next morning when the deceased did not agree to go to the police station he took him to his house and left him there and some time thereafter he heard about the death of the deceased. The Appellant being confronted with the confessional statement at the trial stated that he was not in a sound state of mind at the time of making the confession. The evidence of the Magistrate (P.W. 11) shows that before recording the confession he disclosed his identity to the Appellant and gave him sufficient time for reflection and cautioned him that he was not bound to confess and that any confession made by him might be used as evidence against him. The confession was recorded beyond the sight and hearing of any of police officer. The evidence of the Magistrate leaves no room for doubt that the confession was made voluntarily. Truth of the confessional statement is established by the evidence of P.Ws. 2 to 5. 11. On a consideration of the evidence of P.Ws. 2 to 5 coupled with the confessional statement of the Appellant, we have no doubt in our minds that the Appellant committed assault on the deceased as he passed stool in front of his house in the night of occurrence. 12. Now the question arises what offence in law has the Appellant committed.. The doctor who conducted autopsy over the dead body of the deceased opined that the injuries were simple in nature. According to him, the contusions bruises and abrasions are seldom fatal. He, however, opined that death occurred due to shock resulting from the multiple injuries. Shock usually appears immediately after receiving the injuries, but it may supervene after some time, if the individual at the time of receiving injuries was in a state of great excitement and mental pre-occupation (vide Modi's Jurisprudence, 18th Edition, page 235). It appears that the deceased, after being assaulted by the Appellant, went to the house of P.W. 3 in the night of occurrence and talked with him. It appears that the deceased, after being assaulted by the Appellant, went to the house of P.W. 3 in the night of occurrence and talked with him. It also appears that after the deceased was taken to the Kothaghara he talked with P.W. 2. There is nothing to show that the deceased was in a state of great excitement and mental pre-occupation, after receiving the injuries inflicted by the Appellant. Thus, it would appear that the death of the deceased did not occur due to shock produced by the injuries which were inflicted by the Appellant in front of his house. Prosecution has not led any evidence to show that the Appellant committed any, further assault on the deceased after he was taken to the Kothaghara. The evidence of P.W. 4 shows that when the deceased was brought to his house in the morning she learnt from accused Gada Bala that the deceased had fallen down under a tree near the Kothaghara. The doctor (P.W. 6) has opined that injuries Nos. 4, 5 and 6 on the body of the deceased could be caused by fall and that injuries Nos. 9 and 10 could be caused by friction of the body with a blunt and pointed thorn of a tree or any twig and not by blow with any weapon. He also opined that on account of presence of injuries Nos. 1, 2 and 3 on the body of the deceased there was every likelihood of his' falling down. In view of the above evidence, the possibility of the deceased having died due to shock produced by the injuries which were caused by fall cannot be ruled out. The Appellant cannot, therefore, be held guilty of murder. He can at best be convicted u/s 324, Indian Penal Code for having caused simple injuries with 3 deadly weapon. 13. In view of our above findings, we alter the conviction to one u/s 324, Indian Penal Code; set aside the sentence of imprisonment for life and in lieu thereof award a sentence of rigorous imprisonment for one year against the Appellant. Subject to the above modification, this appeal stands, dismissed. B.K. Behera, J. 14. I agree. Final Result : Dismissed