P. K. MISRA, J. ( 1 ) THE two appellants have been convicted under S. 302/34, Indian Penal Code, and sentenced to undergo imprisonment for life for having voluntarily caused the death of one Nakula Naik. The appellants are also convicted under Ss. 307/ 34, Indian Penal Code, and sentenced to undergo R. I. for three years and to pay a fine of Rs. 300/-, in default, to undergo further R. I. for three months, for having attempted to commit the death of Katua Naik. ( 2 ) DECEASED Nakula Naik was the brother of informant Katua Naik. On 24-6-1990 their brother Arjuna Naik expired. The two appellants who are agnatic relations of the informant had accompanied the dead body to the burial ground for cremation. After returning, the appellants questioned Nakula Naik (deceased) as to why oil had not been arranged at the time of taking bath after cremation. On this ground there was exchange of hot words between Nakula Naik and the appellants. Immediately, thereafter, appellant No. 1 Andhari Naik brought a 'katari' and assaulted on the head of Nakula Naik. When the informant protested regarding such action, appellant No. 2, Prafulla Naik dealt 'katari' blow on the head of the informant and after the latter fell down dealt further blow with lathi causing injury on the right eye-brow. Though deceased Nakula Naik was shifted to the Sub-Divisional Hospital at Banki and thereafter, to the S. C. B. Medical College Hospital, the next day, he succumbed to the injury on 26-6-1990. After investigation charge sheet was submitted under Ss. 302/307/34, Indian Penal Code against both the appellants. ( 3 ) THE plea of the accused persons was one of denial. ( 4 ) THE prosecution examined 15 witnesses in all of whom P. Ws. 1 to 4 are the eye-witnesses to the occurrence. P. Ws. 5, 6 and 8 are seizure witnesses and P. W. 7 is a witness to the inquest. P. Ws. 9 and 11 are the doctors who treated P. W. 1 at Banki Hospital. P. W. 14 is the doctor who conducted the postmortem examination. P. Ws. 12, 13 and 15 are the Investigating Officers in this case. ACCEPTING the ocular evidence of P. Ws. 1 to 4 as supported by the medical. evidence, the trial Court found that both the appellants were guilty under Ss. P. W. 14 is the doctor who conducted the postmortem examination. P. Ws. 12, 13 and 15 are the Investigating Officers in this case. ACCEPTING the ocular evidence of P. Ws. 1 to 4 as supported by the medical. evidence, the trial Court found that both the appellants were guilty under Ss. 302/34, India Penal Code, for having caused the murder of deceased Nakula. It further found that appellant No. 2 had assaulted P. W. 1 on the head by 'katari' and as such convicted both the appellants under Ss. 307/34, Indian Penal Code. ( 5 ) MR. S. K. Sahoo, the learned counsel appearing for the appellants submitted that even accepting the entire prosecution story to be true, it cannot be said that appellant No. 1 is liable under S. 302, Indian Penal Code. He submitted that the materials on record indicate that there was a sudden quarrel whereafter appellant No. 1 has given only one blow on the head and as such the conviction under S. 302, Indian Penal Code, should not. be sustained. He further submitted that nothing had been ascribed to appellant No. 2 in the F. I. R. regarding the assault on the deceased and it cannot be said that there was any common intention to cause murder. THE learned counsel appearing on behalf of the State has supported the judgment of the trial Court. ( 6 ) F. I. R. was lodged by P. W. 1 who himself had sustained injury. It is apparent from the materials on record that F. I. R. had been lodged in consultation with an Advocate of the local Bar at Banki. The F. I. R. itself appears to be a detailed one. In the F. I. R. it is indicated that there was quarrel between the deceased and the appellants regarding non-supply of oil at the time of taking bath after cremation and thereafter, appellant Andhari Naik brought a 'katari' and assaulted the deceased. Nothing has been indicated in the F. I. R. regarding any overt act by appellant No. 2. At the stage of evidence, the prosecution tried to introduce a story that after appellant No. 1 had assaulted the deceased appellant No. 2 also assaulted the deceased with a lathi. Nothing has been indicated in the F. I. R. regarding any overt act by appellant No. 2. At the stage of evidence, the prosecution tried to introduce a story that after appellant No. 1 had assaulted the deceased appellant No. 2 also assaulted the deceased with a lathi. Though F. I. R. is not supposed to be on encyclopaedia of the prosecution case, in the peculiar facts and circumstances of the present case, the non-mention of any overt act relating to assault on the deceased by appellant No. 2 assumes great importance specially in view of the admitted fact that F. I. R. had been lodged as per the advice of an Advocate. That apart, even the medical evidence on record does not support the prosecution story as revealed from the statements of P. Ws. 1 to 4 regarding assault on the deceased by appellant No. 2. Having regard to the fact that the occurrence took place suddenly in course of a quarrel, it cannot be said that the assault on the deceased by appellant No. 1 was in pursuance of the common intention of both the appellants. Appellant No. 2 is, therefore, exonerated of the charge under 5s. 302/34, Indian Penal Code, so far as the question of death of deceased Arjuna Naik is concerned. However, there is nothing to disbelieve the prosecution evidence regarding the role of appellant No. 2 assaulting P. W. l. Though there is some discrepancy as to the weapon used, it is evident that appellant No. 2 has assaulted P. W. 1 with a hard and blunt weapon on the head as well as on the eye. The order of conviction of appellant No. 2 under S. 307, Indian Penal Code, is sustainable and the finding of the trial Court on that score is confirmed. ( 7 ) SO far as appellant No. 1 is concerned; it is apparent that he has given one blow on the head. The assault was preceded by a quarrel and there is material on record to indicate that even the deceased had slapped appellant No. 1. Having regard to the materials on record and the facts and circumstances of the case, we consider that appellant No. l is guilty under S. 304, Indian Penal Code, and not under S. 302. The assault was preceded by a quarrel and there is material on record to indicate that even the deceased had slapped appellant No. 1. Having regard to the materials on record and the facts and circumstances of the case, we consider that appellant No. l is guilty under S. 304, Indian Penal Code, and not under S. 302. As such, his conviction under S. 302 is altered to one under S. 304, Indian Penal Code, and he is sentenced to undergo R. I. for seven years. So far as his conviction under Ss. 307/ 34, Indian Penal Code, for the assault on P. W. 1 is concerned, there is no material to come to conclusion that the assault on P. W. 1 by appellant No. 2 was pursuant to any common intention of both the appellant. As already indicated, the occurrence was the outcome of a sudden quarrel and as such it cannot be said that appellant No. 2 and appellant No. l had any common intention. As such the conviction of appellant No. 1 under Ss. 307/34, Indian Penal Code, is set aside. ( 8 ) IN the result, the appeal is allowed in part. The conviction of appellant No. 1 under Ss. 302/ 34 is altered to one under S. 304, Indian Penal Code, and he is sentenced to undergo R. I. for seven years and he is acquitted of the charge under Ss. 307/34, Indian Penal Code. Appellant No. 2 is acquitted of the charge under Ss. 302/34, Indian Penal Code, but his conviction and sentence as imposed by the trial Court under S. 307, Indian Penal Code, are sustained. ( 9 ) FROM the lower Court records, it appears that appellant No. 1 has been in custody all through and by now he has completed more than six years of imprisonment during and after trial of the case and appellant No. 2 is in custody after the judgment of the trial Court. Since appellant No. 2 has already completed more than three years of imprisonment, he should be released forthwith. So far as appellant No. 1 is concerned, the period already undergone including the period of remission should be taken into account and thereafter, appropriate order should be passed by the concerned authority. ( 10 ) D. M. PATNAIK, J. , I agree. Order accordingly.