JUDGMENT : Pradip Mohanty, J. - This criminal appeal is directed against the judgment and order dated 27.08.2004 passed by the Addl. Sessions Judge, Kalahandi, Bhawanipatna in S.C. No. 115/17 of 2003 convicting the Appellants under Sections 302/34 I.P.C. and sentencing them to undergo imprisonment for life and to pay a fine of Rs. 2000/ - each in default to undergo R.I. for two months and further convicting them u/s 307/34 I.P.C. and sentencing them to undergo R.I. for ten years for the offence u/s 307/34 I.P.C. 2. The case of the prosecution is that on 24.01.2003 the informant, who is the daughter of the deceased Bidu Behera, lodged a written report in the Bhawanipatna Sadar P.S. to the effect that at about 8 A.M. on that day she along with her father and brother Prasanta Behera (P.W.5) were in their field. At that time, her uncle Arta Behera (Appellant No. 1), accused Chauban Behera (Appellant No. 2), Hiron Behera (Appellant No. 3) and others were in their field. There was a dry 'Dimiri' tree on the ridge of the land. Appellant No. 1 and his sons (Appellant Nos. 2 and 3) cut the said tree and demanded to take the same whereas the informant, her father and brother made a similar demand. Immediately, the sons of Appellant No. 1 caught hold of her father and Appellant No. 1 being enraged suddenly gave axe blows on his head and back. When her brother Prasant Behera (P.W.5) intervened, all the Appellants assaulted him by axe on his head. Thereafter, the injured were shifted to the hospital. Basing on such report P.S. Case No. 12 of 2003 under Sections 147,148, 307, 326/149 IPC was registered and investigation was taken up. The deceased died on 04.02.2003 while being shifted to Cuttack for treatment. Ultimately charge sheet was submitted under Sections 302/307/34 I.P.C. against the Appellants. 2.1 The plea of the Appellants was complete denial of the allegations. 3. In order to prove its case, the prosecution examined as many as seventeen witnesses and exhibited eighteen documents. Defence has examined none. 4. The learned Addl. Sessions Judge, Kalahandi, Bhawanipatna, who tried the case, by his judgment dated 27.08.2004 found the Appellants guilty of the offence punishable u/s 302/307/34 IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. Defence has examined none. 4. The learned Addl. Sessions Judge, Kalahandi, Bhawanipatna, who tried the case, by his judgment dated 27.08.2004 found the Appellants guilty of the offence punishable u/s 302/307/34 IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/ - each in default to undergo R.I. for two months for offence u/s 302/34 IPC and further sentenced them to undergo R.I. for ten years for the offence punishable u/s 307/34 IPC. 5. Learned Counsel for the Appellants submits that there was exchange of hot words and altercation between both the parties for removal of dry 'Dimiri' tree which was on the ridge of the land. In course of altercation, at the spot, Appellant No. 1 gave an axe blow on the head of the deceased, who ultimately expired. The trial Court on analyzing the evidence disbelieved the F.I.R. With regard to recovery of weapons of offence, i.e., Tangia, it has not been proved by the prosecution. He further submits that P.W.2 though claimed to be an independent eye-witness to the occurrence, at the time of occurrence he was on the School Verandah and the I.O. has admitted that the spot is not visible from the school verandah. Therefore, he is a got up witness and should not be believed. P.W.1, the daughter of the deceased and eye witness to the occurrence has tried to develop the story and exaggerate the prosecution case. That apart, there are major contradictions in her evidence. There are also major contradictions in the evidence of P.W.5, the injured witness. P.W.12, the doctor, has stated in her evidence that the deceased had been admitted to hospital on the very day of occurrence and due to septicemia, infection came to the injuries. Therefore, the Appellants should not be held responsible for the death of the deceased. According to the learned Counsel, for all these reasons the impugned order of conviction is bad and should be set aside. 6. Learned Additional Government Advocate vehemently contended that there are ample materials to convict the Appellants u/s 302/34 I.P.C. and 307/34 I.P.C. P.W.2 is an independent witness and there is no reason to discard his evidence. The weapons of offence were recovered at the instance of Appellant No. 1 under Ext.7/1. Therefore, no illegality can be said to have been committed by the trial Court convicting the Appellants. 7. The weapons of offence were recovered at the instance of Appellant No. 1 under Ext.7/1. Therefore, no illegality can be said to have been committed by the trial Court convicting the Appellants. 7. Perused the L.C.R., more particularly, the deposition of witnesses. In the instant case, P.W.1 is an eye-witness to the occurrence who is daughter of the deceased and sister of P.W.5. P.W.2 is a teacher of the School. P.W.5 is the injured and son of the deceased. The evidence of P.W.1 discloses that Appellant No. 1 and his sons demanded to take the Dimiri log to which the deceased protested. On this Appellant Nos. 1 and 2 assaulted her father by an axe and when her brother-P.W.5 intervened, other accused persons assaulted her brother and also chased him. She lodged the F.I.R. Nothing has been elicited from her during cross examination by the defence. Of course, some minor contradictions are there in her evidence. P.W.2 is a teacher of Badli U.P. School. He stated that he had seen the occurrence. He specifically stated that he had seen the Appellants assaulting P.W.5 by axe. Nothing has been elicited from him during cross-examination by the defence. There is no reason to disbelieve the above witness. P.W.5, the injured eye-witness, has corroborated the evidence of P.Ws.1 and 2 in all material particulars. He stated that the deceased was being assaulted by the Appellants he intervened and was also assaulted. Appellant No. 1 assaulted him on his right side arm below the shoulder. When he tried to escape by running away, all the accused persons chased him and assaulted by axe and he sustained injury on his chest, left hand in between shoulder joint arid elbow joint, right hand below the shoulder joint, left foot and the right leg below the knee joint. Though this witness was cross-examined at length by the defence, nothing has been brought out from him to discredit his version. P.W.11 is the doctor who conducted autopsy over the deceased and found following injuries. (I) Abrasion preset left thigh in the conter 1" x 1/2". (II) One old stitched wound healthy one size 2" long present on left side of head above the pinna placed obliquely. On cut open, the margin was rough lacerated one. There was a fracture below the wound over tempore occipital bone on left side size 2" x 3/4" in a triangular manner. (II) One old stitched wound healthy one size 2" long present on left side of head above the pinna placed obliquely. On cut open, the margin was rough lacerated one. There was a fracture below the wound over tempore occipital bone on left side size 2" x 3/4" in a triangular manner. Depressed fracture with fracture places pierced membrance. There were sub-dural sub arc held hemorrhages. (III) Old stitch injury with 3" long, on the back of chest placed obliquely starting from lower end of scapula of right side. The injury extends towards spinal cord. There was species inside the wound. There was injury with cut of all the muscles. Below the injury there was complete fracture of Nos. 8, 7, 6 and 5 right ribs. (IV) Injury to the plurea below the injury No. 3 size 31/2" x 1/2, He specifically stated that the cause of death was due to injury to the vital organs like brain, lungs and septicemia. In Cross-examination he stated that the deceased was treated in the District Head Quarters Hospital, Bhawanipatna for ten days and also admitted that the word septicemia means severe infection. He also admitted that due to septicemia the deceased might have died. P.W.12 is the doctor who treated P.W.5 and the deceased at District Head Quarters Hospital, Bhawanipatna. He found five external injuries on the body of P.W.5. (i) one incised wound on right arm around 6 cm 2 cm. bone depth. (ii) incised wound at mid steraum around 12 cm X 1 cm. bone depth. (iii) incised wound at left arm 5 cm X 2 cm into bone depth (iv) incised wound over left foot 5 cm x 1 cm. (v) suspicion of fracture of humerous was there. He also referred P.W.5 to V.S.S. Medical College. 8. After scanning the evidence of eye-witnesses and the doctor it is crystal clear that the deceased died 11 days after the occurrence. All the Injuries sustained by the deceased were incised and caused by Appellant No. 1. The other accused persons had caught hold of the deceased. All the Appellants had chased injured P.W.5 and assaulted him. Undisputedly, there was a quarrel and exchange of hot words between the Appellants on one hand and the deceased on the other over removal of logs of a tree. The other accused persons had caught hold of the deceased. All the Appellants had chased injured P.W.5 and assaulted him. Undisputedly, there was a quarrel and exchange of hot words between the Appellants on one hand and the deceased on the other over removal of logs of a tree. The Appellants wanted to take away the same and when the deceased protested, Appellant No. 1 gave axe blows to him. Therefore, there was no motive or pre-mediation on the part of the Appellants to kill the deceased. That apart, the deceased died ten days after the occurrence. The doctor also admitted that the death might have occurred due to septicemia which means severe infection developed in the injuries. Therefore, the offence committed by the Appellants does not come under the purview of Section 302/34 I.P.C. since there was no pre-meditation to kill the deceased. Rather, it is a clear case u/s 304 Part-II/34 I.P.C. Accordingly, we hold the Appellants guilty for commission of offence u/s 304, Part-II/34 IPC, convict them thereunder and sentence them to undergo imprisonment for the period undergone. 9. So far as the conviction of the Appellants u/s 307/34 IPC is for attempting to commit murder of P.W.5 is concerned, there is no reason to interfere with the same. However, this Court modifies the sentence to the period of imprisonment already undergone. 10. In the result, this appeal is allowed in part. The conviction of the Appellants u/s 302/34 IPC is altered to one u/s 304, Part-II/34 IPC and they are sentenced to undergo imprisonment for the period already undergone. The conviction of the Appellants u/s 307/34 I.P.C. is maintained, but the sentence is reduced to the period of imprisonment already undergone. L. Mohapatra, J. 11. I agree. Final Result : Allowed