R. K. PATRA, J. ( 1 ) THIS appeal is directed against the judgment dated 31. 5. 1997 of the learned Sessions Judge. Dhenkanal in S. T. Case No. 200 of 1993 by which the appellant Kishore Chandra Sahu has been convicted under Section 302. I. P. C. and appellant Gopal Sahu has been convicted under Section 109. . I. P. C. read with Section 302 I. P. C. Each of them has been sentenced to undergo imprisonment for life. ( 2 ) THE case of the prosecution is that on 9. 4. 1993 at about noon appellant Kishore and P. W. 5 quarrelled with each other in the village Tank of San Dagadari. The appellant Kishore while coming away after taking bath threatened P. W. 5 with dire consequences. Some time thereafter both the appellants were found standing on the village road with a view to assault P. W. 5. Hearing the shout aiming at P. W. 5 deceased Brundaban and his elder file ://d :\prograrn Files\crirnes\database\aa\aa\ 2003 (2) Crimes 324 . htm 8/5/2006 brother Balabhadra came rushing to the spot. Brundaban was trying to dissuade the appellants from creating any untoward incident and suggested to them that the dispute will be settled in the evening by convening a meeting. At this moment. appellant Gopal who was inimical to Brundaban instigated appellant Kishore to kill him (Brundaban ). On being incited, appellant Kishore who was armed with an axe dealt a blow on the head of Brundaban as a result of which the latter fell down and succumbed to the injury. ( 3 ) THE plea of the appellant was one of denial. ( 4 ) PROSECUTION examined fifteen witnesses out of whom P. Ws. 5, 6, 7, 10 and 14 are the eye witnesses to the occurrence. P. W. 1 is the doctor who conducted autopsy on the dead body of the deceased Brundaban. He found on external injury which is as follows; Depressed wound size 8 cm. x 5 cm. on the left side of the head parietofrontalarea. A lacerated cut 6 cm. x 2 c. m. bone deep with clotted blood and mated hair. Bone of skull was fractured into multiple pieces under the depressed area of 8 c. m. x5 c. m. Membranes of brain were ruptured below the area. Brain matter underneath was lacerated with clotted blood. on the left side of the head parietofrontalarea. A lacerated cut 6 cm. x 2 c. m. bone deep with clotted blood and mated hair. Bone of skull was fractured into multiple pieces under the depressed area of 8 c. m. x5 c. m. Membranes of brain were ruptured below the area. Brain matter underneath was lacerated with clotted blood. ( 5 ) THERE is no dispute that the deceased Brundaban had a homicidal death. ( 6 ) WE have perused the evidence of the eye witnesses who have consistently deposed that on being instigated by appellant Gopal Sahu, appellant Kishore dealt a blow on the head of the deceased with the axe which he was holding. The witnesses were cross-examined but nothing substantial was brought out to discredit their evidence. Learned counsel for the appellants has not been able to furnish any cogent and valid reason to disbelieve their testimony. For the reasons aforesaid, we concur with the finding of the learned Sessions Judge that appellant Kishore Chandra Sahu dealt an axe blow on the deceased Brundaban resulting in his death and he did it on being abetted by appellant Gopal Sahu. ( 7 ) LEARNED counsel for the appellants, however, submitted that appellant Kishore had no intention to cause the death. He assaulted the deceased at the spur of the moment on being instigated by the other appellant. Evidence on record indicates that the deceased Brundaban had come to the spot to pacify the quarrel which had ensued between the appellant on the one hand and P. W. 5 on the other. The appellant Kishore had, therefore, no intention to cause the death of the deceased Brundaban nor had he any such intention to cause such bodily injury as was likely to cause the death. Therefore, we hold him guilty under Section 304 Part-11. I. P. C. We accordingly hold the appellant Gopal Sahu guilty under section 109, I. P. C. read with Section 304 Part-11 thereof. ( 8 ) IN the result. the conviction of appellant Kishore Chandra Sahu under Section 302, I. P. C. and the conviction of appellant Gopal Sahu under section 109 I. P. C. read with Section 302. I. P. C. are set aside. ( 8 ) IN the result. the conviction of appellant Kishore Chandra Sahu under Section 302, I. P. C. and the conviction of appellant Gopal Sahu under section 109 I. P. C. read with Section 302. I. P. C. are set aside. We however, convict appellant Kishore under Section 304 Part-1, I. P. C. and the other appellant Gopal Sahu under Section 109, I. P. C. read with Section 304 Part-1, I. P. C. Each of them is hereby sentenced to undergo rigorous imprisonment for seven years. Appeal allowed partly.