JUDGMENT I. M. QUDDUSI, J. : This Criminal Appeal has been filed against the judgment and order dated 17.7.1987 passed by the learned Sessions Judge, Balasore in S.T. No.8 of 1987 convicting the appellant under Section 304 Part II IPC and sentencing him to undergo rigorous imprisonment for five years under Section 304 Part II IPC. 2. The brief facts of the case are that there was some prior dispute between the appellant and the deceased Babaji Das regarding demarcation of their boundary and putting up fence in between their homestead in front of their residential house. According to the prosecution story, about one month prior to the date of occurrence the appellant put a fence adjoining to the western side wall of the house of the deceased to which the de¬ceased and his family members raised objections and made a com¬plaint to the A.S.I. of Agarpara O.P. who directed the appellant to remove the fence but the same was not removed. On the day of incident in question, deceased Babaji Das removed a portion of that fence and this became the reason of the incident in ques¬tion. On 6.7.1986 at about 7.00 A.M. the appellant came out from his house near that fence and challenged the deceased Babaji Das and his two sons about uprooting the fence and there was altercation between them as a result of which the appellant took out a crow bar in his hand and gave a blow on the head of the deceased Babaji Das due to which he fell down senseless with bleeding injury. His two sons, namely Bharat Chandra Das (P.W.1) and Sarat Das (P.W.2) were the eye witnesses who removed him from the place of occurrence and took him to a short distance and put some burnt cloth in his wound. Their mother, i.e., the wife of the deceased started weeping by which some villagers gathered and with their help they took the deceased to Agarpara P.H.C. where the Medical Officer gave him first aid treatment, stitched the wound and referred him to Bhadrak Hospital. The deceased was taken to Bhadrak Hospital where at about 11.00 P.M. on the same day he succumbed to his injury. An F.I.R. was lodged when the deceased was alive and as such police initially registered the case under Sections 447/323/325/307/34 I.P.C. against four per¬sons including the appellant. The deceased was taken to Bhadrak Hospital where at about 11.00 P.M. on the same day he succumbed to his injury. An F.I.R. was lodged when the deceased was alive and as such police initially registered the case under Sections 447/323/325/307/34 I.P.C. against four per¬sons including the appellant. But later on, the case was convert¬ed to one under Section 302, IPC. The FIR was lodged at about 9.00 AM. at Agarpada Out Post. In all nine witnesses were exam¬ined by the prosecution, and the defence examined only one wit¬ness, i.e. D.W.1 P.Ws.1 & 2 are the sons of the deceased, who are eye witnesses also. Dr. Kamalakanta Das (P.W.5) conducted post-mortem examination over the dead body of the deceased and Dr. Gourisankar Sen (P.W.6) is the medical officer of Agarpara PHC who gave first aid treatment to Babaji Das (deceased) and stitched the head injury. Bijay Kumar Padhi (P.W.7) prepared the inquest over the deadbody in Bhadrak Hospital and proved the inquest report. P.W.8 Ishwar Chandra Panda was the A.S.I. of Agarpada O.P. and P.W.9 was the Officer-in-charge of the con¬cerned P.S. Both of them had investigated the case. 3. The statements of eye witnesses P.Ws. 1 and 2 were corroborated by the medical evidence. The doctor (P.W.5) who conducted post-mortem in cross-examination has stated that he found one external lacerated injury on the head having corre¬sponding internal injury accompanied by fracture and depression of the left parietal bone. P.W.6 who had given first aid and stitched the injury of the deceased has stated that he found two injuries, i.e. one lacerated wound and another fracture. But that was by physical appearance only. The incident took place in the day light in front of P.Ws. 1 and 2 and, therefore, there is no doubt that the occurrence had taken place and injury on the person of the deceased was caused by the appellant by means of crow bar. However, the learned Sessions Judge has found that there is no evidence that the appellant previously kept the crow bar nearby the spot in consequence of a pre-plan to give such assault on the deceased. Therefore, the offence punishable u/s. 302 IPC has not been made out. In my opinion, the appellant was rightly acquitted for the offence punishable u/s. 302, IPC and convicted u/s. 304, Part II IPC. 4. Therefore, the offence punishable u/s. 302 IPC has not been made out. In my opinion, the appellant was rightly acquitted for the offence punishable u/s. 302, IPC and convicted u/s. 304, Part II IPC. 4. Since the prosecution has proved its case beyond all reasonable doubt, the appeal is liable to be dismissed on merit. However, considering the fact that the appellant must have at¬tained the age of 58 years by now and in the facts and circum¬stances of the case, the sentence of five years R.I. awarded by the learned Sessions Judge appears to be excessive. Therefore, I am of the opinion that the sentence of R.I. for five years award¬ed by the learned Sessions Judge be reduced to that of one year R.I. with a fine of Rs.20,000/- which is liable to be paid to the legal heirs of the deceased. The appeal is allowed in part. The conviction of the appel¬lant under Section 304 Part II is upheld. However, the sentence of five years R.I. awarded by the Court below is modified to the extent that the appellant shall undergo R.I. for one year and shall pay fine of Rs.20,000/- (Rupees twenty thousand) and in default of payment of fine, the appellant shall suffer a further simple imprisonment for two years in lieu thereof. However, in case the fine is deposited or realised, the same shall be paid to the legal heirs of the deceased. Appeal allowed in part.