JUDGMENT : 1. Heard argument from the parties, hearing is concluded and the judgment is as follows. 2. Balaram Prusty is the deceased and hereinafter referred to as such. Sara Prusty (P.W.3) is the widow of the deceased. Susil Prusty (P.W.1) is the son of the deceased and Sara. The occurrence of assault on the deceased and P. Ws.1 and 3 took place on 11.12.1994 at about noon time in village Balakira under Baunsuni Police Station in the district of Boudh. 3. According to the case of the prosecution, deceased had purchased the disputed homestead land from accused Jita Sahu and was in possession of the house thereon for about forty years by the date of occurrence. On the date of occurrence, acquitted accused Annapurna and Tapasya, both of whom are the wives of accused Jita Sahu, trespassed into the disputed house. Deceased and P.W. 3 drove them out. The said two lady accused persons shouted on the pretext that deceased misbehaved them. Then accused-Appellants, who are members of one family, came running to the spot, i.e., the disputed house and on the village 'Danda' in front of that house assaulted the deceased by means of 'Thenga', 'Badi', 'Medha' and 'Suli' (various sticks). The deceased sustaining bleeding injuries fell down. Accused persons decamped then from the spot. P. Ws.1 and 3 with the help of others took the deceased to the district headquarters hospital at Boudh via Baunsuni P.H.C. At the district headquarters hospital the deceased succumbed on that date. 4. The Officer-in-Charge of Baunsuni Police Station, who was at Boudh, arrived at the hospital, accepted the written report of P.W. 1 and undertook the investigation. After a routine investigation, finding a prima facie case, he submitted charge sheet against the accusedAppellants as well as the above-named two female accused persons. After commitment of the case, Learned Sessions Judge framed charge against all the accused persons under Sections 302/323/149, Indian Penal Code 5. Accused persons took the plea that the house in question, by the date of occurrence, was in their possession and the deceased together with P. Ws.1 and 3 trespassed into that and outraged the modesty of the female folk and when the male accused persons wanted to teach him a lesson, the deceased wanted to escape by running away and in that process he dashed against the electric pole standing near the house and thereby sustained injuries. 6. To substantiate the charge prosecution relied on the evidence of 13 witnesses and exhibited documents vide Exts.1 to 19 and the weapon of offence as M. Os. I to IV and the wearing apparels of the accused persons and the deceased as M. Os. v. to XII. Accused persons, in their defence, filed documents like the ex parte prohibitory order, Exts.A and D (the same order exhibited twice), voter list relating to the deceased and his family members and the enquiry report of the A.S.I. of Police, Ext.C before initiation of the proceeding u/s 144, Code of Criminal Procedure. 7. Learned Sessions Judge, referring to the evidence of Dr. Trilochan Baral (P.W.11), held that deceased suffered homicidal death due to the ante-mortem injuries. Referring to the evidence of P. Ws.1 to 5, he held that prosecution has been able to prove clearly, consistently and cogently that the Appellants inflicted the blows and are responsible for the homicidal death of the deceased so also for the injuries sustained by P. Ws.1 and 3, which has been proved by P. Ws.9 and 10 and the Injury Certificates - Exts. 9 and 10. Accordingly he held the Appellants guilty of the offence u/s 302/34, Indian Penal Code and sentenced each of them to undergo imprisonment for life. The Trial Court acquitted all the accused persons from the charge under Sections 302/149, Indian Penal Code and 323/149, Indian Penal Code 8. Learned Counsel for the Appellants argues that prosecution has failed to prove that the deceased and P. Ws.1 and 3 were in possession of the occurrence house. Once that part of the evidence is lacking and when Ext.B proves that they have residential house in another village and that they have been prohibited to enter into that premises as per Exts. A and D, the plea advanced by the prosecution has to be disbelieved saying the accused persons as the aggressors. On the other hand the defence plea appears to be most improbable when they state that it was the deceased who trespassed into the house and tried to outrage modesty of one of the wives of accused Jita Sahu. A and D, the plea advanced by the prosecution has to be disbelieved saying the accused persons as the aggressors. On the other hand the defence plea appears to be most improbable when they state that it was the deceased who trespassed into the house and tried to outrage modesty of one of the wives of accused Jita Sahu. In the above context Learned Standing Counsel states that the evidence of P. Ws.1 to 5 clearly and consistently proves the factum of possession of the house by the deceased, and the documents relied on by the defence no way disprove the factum of possession in favour of the deceased and, therefore, the genesis of the occurrence should not be doubted. 9. Exts. A and D are the two copies of the same order of Section 144, Code of Criminal Procedure. proceeding. Ext.C is the report of the A.S.I of Police. That report indicates that though the deceased had purchased the disputed premises, but was not staying therein and the accused persons were not in possession of that premises as well. As it appears, to make the way clear the civil dispute, accused persons initiated the proceeding u/s 144, Code of Criminal Procedure., wherein ex parte prohibitory order was passed to remain in force from 21.11.1994 to 06.12.1994. That order by itself does not create a presumption that the deceased was not in possession of the disputed house. On the other hand, while admitting about having a house in another village, P. Ws.1 and 3 stated that they stay at times in both the villages. Such practice is not uncommon in that part of the State. P. Ws.2, 4 and 5 have open-heartedly supported the plea of possession in favour of the deceased. Thus, from the documents marked Exts. A to D it is not proved on record that the deceased was not in possession of the occurrence house. Under such circumstance, contention of the Appellants is rejected when he argues to doubt the genesis of the occurrence on the ground of lack of possession of the house by the deceased. 10. Thus, from the documents marked Exts. A to D it is not proved on record that the deceased was not in possession of the occurrence house. Under such circumstance, contention of the Appellants is rejected when he argues to doubt the genesis of the occurrence on the ground of lack of possession of the house by the deceased. 10. Learned Counsel for the Appellants then argues that in his evidence the I.O. has admitted about existence of an electric pole near the occurrence house and that the bloodstained and sample earth were seized from the spot of occurrence situated near that electric pole and that the investigating officer did not seize bloodstained and sample earth from the verandah of one Mahendra Patra, to which place admittedly the deceased was shifted after he fell down on sustaining bleeding injuries (on the village 'Danda'). Learned Counsel argues that the admitted fact situation being so, the defence plea of the deceased sustaining that injury due to dash against electric pole is more probable and in that respect P.W. 11 also endorsed approval. Accordingly the Appellants rely on the evidence of P.W. 11 that- The parietal area is softer than the forehead. If a person is pushed with sufficient force against the standing- electrical and if his head comes in contact with that pole, one side of the injury on the parietal region is possible. After being dashed against a standing electric pole and sustaining injury on the one side of the parietal area, if by the return force he falls on a stony surface, he can sustain injury on the opposite parietal region. Injury No. 3 is not continuous injury to injury No. 1 or injury No. 2. 11. Learned Standing Counsel argues that, according to the evidence of P.W. 11 there were three external injuries, one on the left parietal and lateral part of the occipital bone, the other was on the right temporal and parietal area and the third one was on the right side forehead akin to right eyelid and right zygoma. If the theory of the defence is accepted, then there should have been one or maximum two external injuries and not three, and therefore the defence theory of sustaining the injury by dashing against the electric pole be rejected at the threshold. Indeed, we find that the defence has taken such a plea without considering the probability factor. If the theory of the defence is accepted, then there should have been one or maximum two external injuries and not three, and therefore the defence theory of sustaining the injury by dashing against the electric pole be rejected at the threshold. Indeed, we find that the defence has taken such a plea without considering the probability factor. The opinion of P.W. 11 no way creates a circumstance of sustaining of all the three injuries due to dash against the electric pole and falling down on the ground. Under such circumstance, argument of the Appellants, in the above context, is rejected. In other words, the contention of the Appellants about the deceased suffering an accidental injury is not accepted. 12. Learned Counsel for the Appellants without much disputing to the evidence of P. Ws.1 to 5 so also the evidence of P.W. 11, argues that if the entire facts scenario is to be considered, then the two lady accused entered into the disputed premises possibly being emboldened by the prohibitory order, Ext.A, but the deceased had no business of outraging their modesty. He further argues that even if that part of the defence contention is not accepted, then also it is the admitted case of the prosecution as well as the defence that the whole occurrence started after the two lady accused shouted and that ended in a challenge by one party to the other. He further argues that under such circumstance dealing of injuries by sticks ('Medha', 'Badi' and 'Suli') only resulted in swelling on different parts of the body of the deceased, and under such circumstance a case of murder is not proved though at best it may amount to a case of culpable homicide not amounting to murder. He argues to convict the accused persons u/s 304, Part-II of Indian Penal Code and to acquit the Appellants from the charge u/s 302/ 34, Indian Penal Code 13. Learned Standing Counsel on the other hand vehemently opposes to the aforesaid argument and submits that the three injuries in the head region, i.e., the vital part of a human body, resulted in the death of the deceased and, therefore, the offence committed by the Appellants is nothing but murder. In any case, he argues, it cannot be a case of culpable homicide governed by second part of Section 304, Indian Penal Code 14. In any case, he argues, it cannot be a case of culpable homicide governed by second part of Section 304, Indian Penal Code 14. Regard being had to the aforesaid rival submissions of both the parties and on perusal of the evidence of P. Ws.1 to 5, we find that the confrontation was between both the parties with a view to claim ownership and possession. In that process, in furtherance of such assertion the two lady accused entered into the disputed premises and undoubtedly they shouted with the complaint that deceased and P.W. 3 misbehaved them. Both P. Ws.l and 3 have admitted in their evidence that both the lady accused shouted with the allegation that they were misbehaved. P. Ws.l and 3 have also stated in their evidence that both the lady accused were driven out from the disputed house and deceased was taking leading part together with P.W. 3. Therefore, arrival of other accused persons with the weapons of offence like M. Os. I to IV and dealing blows on the deceased may be a retaliation to the misbehaviour to the lady accused persons. Undoubtedly the three blows dealt with, according to the doctor (P.W.11), was- (i) Swelling over the left parietal and lateral aspect of occipital bone of size 4" x 4" x 1" with a surface abrasion of 1 1/2" x 1/2" size. (ii) Swelling over the right temporal and parietal area of size 4" x 3 1/2"x 1". (iii) Swelling of right side forehead, right eyelid and right zygoma of size 6" x 5" x 1/2". Thus, it appears that though accused had no intention to cause the death of the deceased, the injuries inflicted by them were dangerous enough and therefore the act of the accused persons fairly comes within the range of culpable homicide not amounting to murder punishable under the first part and not second part of that penal provision. 15. Therefore, we set aside the order of conviction u/s 302, Indian Penal Code and the sentence thereof, and record conviction of the Appellants u/s 304, first part of Indian Penal Code and sentence each of them to undergo rigorous imprisonment for a period of seven years and six months. The period of detention in jail custody be set off accordingly. The Criminal Appeal is accordingly allowed in part. The period of detention in jail custody be set off accordingly. The Criminal Appeal is accordingly allowed in part. Since all the Appellants are on bail, they are directed to appear before the Trial Court for calculation of the period of detention and to serve the left over period of sentence, if any. If any of the Appellants defaults in appearing before the Trial Court within a period of one month from today, then it is open to Learned Sessions Judge, Phulbani to secure his/their attendance by issuing warrant of arrest and to detain him/them in jail custody until calculation of the past detention period or till completion of serving the aforesaid period of sentence, as the case may be. Appeal allowed in part. Final Result : Allowed