JUDGMENT : B. Panigrahi, J. - This appeal assails the order of conviction of the Appellants u/s 302/34, IPC and sentence of imprisonment for life passed-by the learned Additional Sessions Judge, Titilagarh, in Sessions Case No. 12075 of 1993-1994. 2. The skeletal picture of the prosecution story, as narrated in course of trial, is as follows: In the night between 31.7.1993 and 01.08/1993, there was unabated rain. Deceased Sumant Dandia had transplanted paddy seedlings in his land. The land of the deceased was situated adjacent to the land of the Appellants in the lower level and there was a breach in the common ridge. Just to arrest the running down of excess water to his land, which would have damaged the paddy seedlings, the deceased put a barricade on the common ridge by bamboo matting alongwith some earth. On 01.08.1993, the deceased alongwith his father Ballava Dandia (P.W.7), nephew Budu Dandia (P.W.1) and sister Kuntala Dandia had been to transplant paddy seedlings in a nearby land. In the afternoon, after the transplantation was over, P.Ws. 1 and 7 and Kuntala went to a tank, locally known as "Dasamati Kata" to wash themselves, and the deceased went to have a look at the breach which he had closed. On reaching the spot, he found the three Appellants present there, and the barricade had been removed. There was a heated discussion between the deceased on one hand and the Appellants on the other, sequel to which the Appellants are stated to have inflicted indiscrimate blows on the person of Sumant. On hearing the commotion, P.Ws. 1 and 7 and Kuntala looked at that direction and they saw that Appellant Biswamitra Karan had been armed with an axe, Appellant Narendra Karan with an iron rod and Appellant Gajendra Karan with a lathi, all of whom were assaulting the deceased. Seeing this, they started running to the spot. Adi Naik (P.W.6), Mohan Majhi (P.W.5) and Nilakantha Dandia (P.W.4), who were catching fish in the vicinity, also came there. Seeing those persons approaching, the Appellants took to their heels. By the time the aforesaid persons reached the spot, Susanta had fallen down in water. They lifted the body of Sumanta to a little distance and kept it on a ridge, where they noticed him dead. Therefore, they carried the dead body to the village and kept it on the village Mandap. By the time the aforesaid persons reached the spot, Susanta had fallen down in water. They lifted the body of Sumanta to a little distance and kept it on a ridge, where they noticed him dead. Therefore, they carried the dead body to the village and kept it on the village Mandap. The news of the death of Sumanta spread in the village like wild fire. Thereafter Budu Dandia (P.W.1), the nephew of the deceased, alongwith Satyanarayan Panda (P.W.3), the Sarpanch of the village, went to Saintala Police-station where P.W.1 orally reported the matter to the officer-in-charge of the police-station, who reduced the same to writing. The contents were read over and explained to P.W.1. who admitted the same to be correct and put his L.T.I. The same was treated as FIR (Ext.1) and a case u/s 302 read with Section 34, IPC was registered against the Appellants. The Officer-in-charge of the police-station immediately took up investigation. He examined the informant and witnesses on the same day and proceeded to the village. Next day, i.e. on 02.08.2002, he held inquest over the dead body of Sumanta and sent it to the S.D.M.O., Titilagarh for post mortem examination. He also arrested the Appellants. While in custody, Appellants Biswamitra and Narendra led to the discovery of the weapons of offence which were seized u/s 27 of the Evidence Act in presence of witnesses. As Appellant Narendra complained on injury of his person, he was sent to Saintala P.H.C. for examination. In course of investigation, the investigating officer also seized the blood stained earth and sample earth, one Lungi from the house of Appellant Narendra, Anr. Lungi from the house of the Appellant Gajendra, and a white Gamuchha (napkin) and a banian from the house of Appellant Biswamitra suspecting stains of blood on them. The seized articles were sent for chemical examination to the Regional Forensic Laboratory, Ainthapali through the S.D.J.M., Titilagarh. After completion of investigation, charge-sheet was placed before the S.D.J.M., Titilagarh. 3. Appellants Biswamitra Karan and Gajendra Karan took the plea of ignorance of the incident. Appellant Narendra Karan took the plea that while he was alone in his 'Maiduli' land, deceased Sumanta Dandia blocked the ridge of his land, as a result of which there was a severe brawl between them in a course-of which the deceased dealt an axe blow on the head of Narenova. Appellant Narendra Karan took the plea that while he was alone in his 'Maiduli' land, deceased Sumanta Dandia blocked the ridge of his land, as a result of which there was a severe brawl between them in a course-of which the deceased dealt an axe blow on the head of Narenova. When he was attempting for the second time, Narendra slipped to a side and the deceased tumbled down and received injury on his head. 4. In order to bring home the charge to the Appellants, the prosecution examined twelve witnesses. P.W.1-Budu Dandia, P.W.4-Nilakantha Dandia, P.W.5-Mohan Majhi, P.W.6-Adi Naik and P.W.7- Ballava Dandia are said to be the eye? witnesses to the occurrence. P.Ws. 3, 8 and 10 are witnesses to the seizure of blood stained clothes and other incriminating materials. P.W.11 is the Medical Officer who conducted autopsy over the dead body and P.W.12 is the investigating officer. The defence has examined the doctor, who' had certified that Appellant Narendra had received a simple incised wound on his head, as D.W.1. 5. From the evidence of P.W.2, it has been firmly established that there was strong enmity between the parties for a piece of Atta land. Preceding the incident, a Panchayati was convened to settle the dispute. The prosecution case is based on the following circumstances: 1. Eye-witnesses' account implicating the Appellants in the assault on the deceased. 2. Seizure of the incriminating materials, such as. blood stained clothes, from the possession of the Appellants, and seizure of weapons of offence u/s 27 of the Evidence Act at their, instance. 3. The false and improbable defence advanced by the Appellants. 6. P.W.1, who is a close relation of the deceased being his nephew, while corroborating the FIR story, has presented a lucid picture as to how the incident had taken place. Within four hours of the occurrence, the report was lodged at the police-station without causing even the slightest delay. From his testimony, it transpires that on the date of occurrence he had been Jo transplant paddy seedlings alongwith deceased Sumanta Dandia, Ballava Dandia (P.W.1) and Kuntala Dandia. After the transplantation was over, he alongwith P.W.7 and Kuntala went to "Dasamati Kata" to wash themselves. Deceased Sumanta Dandia went towards his land, locally known as 'Maiduli land' to see if there was any breach in the common ridge. After the transplantation was over, he alongwith P.W.7 and Kuntala went to "Dasamati Kata" to wash themselves. Deceased Sumanta Dandia went towards his land, locally known as 'Maiduli land' to see if there was any breach in the common ridge. After some time, they heard an outcry which attracted their attention and they immediately rushed in that direction. They noticed that Appellant Narendra, Biswamitra and Gajendra were assaulting his Uncle Sumanta. Biswamitra was armed with a Tangia (small axe), Narendra was armed with an iron rod and Gajendra was armed with a lathi. All of them were assaulting the deceased. After the Appellants noticed P.W.1 and Ors. coming towards them, they fled away from the spot. On the arrival of P.W.1 and Ors. at the spot, they found the deceased lying in his 'Maiduli land'. In the meantime P.Ws. 4 to 6 had also arrived there. All of them lifted Sumanta from inside the water and kept him on a ridge. He was found unconscious. Within a span of five minutes, he breathed his last. P.W.1 further testified to have noticed that Sumanta had an injury on his head which was then bleeding profusely. He had also sustained injuries on his right shoulder and on his back near the waist above the buttock. Subsequently, they carried the dead body to the village Mandap, following which many villagers assembled there. Thereafter, he alongwith P.W.3. who was the Sarpanch of the village, proceeded on a scooter to Saintala Police-station, where he lodged oral report about the incident. The officer-in-charge of the police-station reduced the version of P.W. 1 to writing, which was read over to P.W. 1, who admitted the contents to be true and put his L.T.I., and the same treated as FIR. The factual narration as deposed in Court by P.W.1 has received substantial corroboration from the FIR. The other eyewitnesses have also supported the version of P.W.1 with regard to the incident. 7. Mr. Acharya, learned Counsel for the Appellants, however, made an attempt to convince us that there are some inconsistencies and discrepancies between the statement of witnesses. It is quite natural to have some minor discrepancies when the witnesses depose in Court after a long lapse of time from the date of recording of their statement by police. Unless such discrepancies are of major dimension, they need to be overlooked. It is quite natural to have some minor discrepancies when the witnesses depose in Court after a long lapse of time from the date of recording of their statement by police. Unless such discrepancies are of major dimension, they need to be overlooked. Accordingly, we hold that the prosecution has been able to prove that the Appellants had assaulted the deceased by means of different weapons, namely, axe. iron rod and lathi. 8. P.W.11, the doctor who conducted post mortem examination over the dead body of Sumanta, found the following external injuries: 1. Lacerated injury situated in the middle of left pareital region crossing the mid-line, length 2-?, breadth 1/4 and bone deep. 2. Penetrating wound on the lumber region on the level of 5th lumber vertibra (right side), ?" ? ?" muscle deep. 3. Bruise - 1" ? ?" over anterior aspect of right shoulder. The above external injuries corresponded to the following internal injuries. 1. There was fracture of pareital bones of both sides extending 2" in each side-corresponding to injury No. 1. 2. Lacerated injury of the muscles corresponding to the injury in the right lumber region. P.W.11 opined that all the injuries were ante mortem in nature. Death was due to haemorrhage and shock caused by the above injuries. Injury No. 1 was sufficient to cause death. 9. Mr. Acharya has, however, invited our attention to the fact that there has been no pointed evidence to establish as to which of the Appellants gave the blow on the deceased to cause his death. It is true that the prosecution has not been able to establish which of the Appellants was responsible for injury No. 1. However, there has been consistent evidence of the eye-witnesses to the occurrence that all the Appellants gave indiscriminate blows as a result of which deceased Sumanta received such injuries. The plea advanced by Appellants Biswamitra and Gajendra that they were innocent and had been falsely implicated has not been established. Therefore, their presence at the spot with the weapons of offence cannot be disbelieved. We also notice that blood-stained clothes had been seized from their possession. The blood contained in the clothes was opined to be human blood, though its group could not be ascertained due to lapse of time. In such circumstances, all the Appellants are to be held liable for the act committed by them. 10. We also notice that blood-stained clothes had been seized from their possession. The blood contained in the clothes was opined to be human blood, though its group could not be ascertained due to lapse of time. In such circumstances, all the Appellants are to be held liable for the act committed by them. 10. Another limb of argument of Mr. Acharya is that the injury on Appellant Narendra has not been explained by the prosecution. Appellant Narendra was sent for medical examination on 03.08.1993 after his arrest on 02.08.1993. The doctor, who has been examined as D.W.1, found one incised wound on the head of Narendra, which was simple in nature. It cannot be ruled out that such injury might have been received during the same transaction. However, in the FIR, there has been no description with regard to the above injury sustained by Appellant Narendra, nor has the prosecution been able to explain as to how such injury was caused to Narendra. Of course, it was obligatory on the part of the prosecution to explain the injury which it has failed to do. But that by itself would not affect the prosecution case in any manner. 11. Mr. Acharya then contended that the Appellants did not have any intention to cause the death of the deceased and the unfortunate incident took place at the spur of the moment. From the evidence presented before the trial Court, it has been established that deceased Sumanta had erected a bamboo nutting barricade to arrest the flow of water to his land. The barricade was removed by the Appellants, as a reason whereof there was heated discussion between the deceased on one hand and the Appellants on the other. The Appellants being enraged assaulted Sumanta, who succumbed to the injuries. Therefore, there was no intention on the part of the Appellants to cause the death of Sumanta and the occurrence had originated at the spur of the moment, According to Mr. Acharya, it is a fit case where the Appellants can at best be convicted u/s 304, Part-II/34, IPC, but not u/s 302/34, IPC. Ta buttress his stand, he placed reliance on a decision of the Supreme Court in Nadodi Jayaraman and Others Vs. State of Tamil Nadu. The facts of the above case are somewhat akin to those of the present case. 12. Ta buttress his stand, he placed reliance on a decision of the Supreme Court in Nadodi Jayaraman and Others Vs. State of Tamil Nadu. The facts of the above case are somewhat akin to those of the present case. 12. From the evidence on record, it is seen that the injuries were caused to deceased Sumanta by all the Appellants. On a critical analysis of the evidence, it could not however be ascertained as to, which of the Appellants was responsible for causing the fatal blow on Sumanta. But, as a mater of fact, there is evidence that all the Appellants had assaulted the deceased. There was no intention that by inflicting such injuries they would cause the death of Sumanta. But, all the same, they had the knowledge that such injuries might cause the death of Sumanta. From the medical evidence, it is found that there was only one injury on the head of the deceased, which proved to be fatal. The other injuries were simple in nature. It is further found that the deceased had lacerated injury on the head, which means that the sharp side of the axe had not been used for causing such injury. The doctor has also opined that such type of injury can be possible by iron rod as well as by Lathi. Since there was a sudden quarrel between Sumanta on one hand and the Appellants on the other with regard to cutting of the ridge, which followed by assault on Sumanta, one can normally expect that it must have emerged at the spur of the moment without any premeditation. In this background, agreeing with the submission of Mr. Acharya, learned Counsel for the Appellants, we hold that the Appellants should be convicted u/s 304, Part-II/34, IPC, but not u/s 302/34, IPC as held by the trial Court and we order accordingly. 13. As regards sentence, it is noticed that the Appellants are in custody for about eight years. In order to meet the ends of justice and keeping in view the principle of criminal jurisprudence, we direct the Appellants to undergo imprisonment which they have already suffered. 14. In the result, this appeal is dismissed with modification of conviction and sentence. The conviction of the Appellants u/s 302/34, IPC is altered to that u/s 304, Part-II/34, IPC and they are sentenced to undergo imprisonment for the period already undergone by them. 14. In the result, this appeal is dismissed with modification of conviction and sentence. The conviction of the Appellants u/s 302/34, IPC is altered to that u/s 304, Part-II/34, IPC and they are sentenced to undergo imprisonment for the period already undergone by them. They be released from jail custody and set at liberty forthwith. P.K. Misra, J. 15. I agree. Final Result : Dismissed