JUDGMENT : R.N. Biswal, J. - This appeal is directed against the judgment and order of conviction and sentence dated 28.10.1995 passed by the learned Addl. Sessions Judge, Khurda in S.T. Case No. 51/7/78 of 1995/91 convicting accused, Murali Bharimal and Dama Parida u/s 302 of IPC and sentencing them to undergo imprisonment for life, Rama Chandra Parida and Maku pradhan u/s 326 read with Section 34 of IPC and sentencing them thereunder to undergo R.I. for four years each, Rama Chandra Parida u/s 324 of IPC and sentencing him to undergo R.I. for one year. The trial Court also convicted Mulraj Bharimal and Dama Parida u/s 326/34 of IPC and without passing any order of sentence thereunder ordered that in case their conviction u/s 302 of IPC is set aside they would be deemed to have sentenced to undergo rigorous imprisonment for a period of four years. 2. Prosecution case, succinctly stated, is that on 12.7.1989 at about 5.00 p.m., while deceased Akhil Paikray and his elder brother, Haribandhu Paikray were returning from their sister's house at village Saralasingh in a luna moped, it went out of order near Manasinghpur, so they got down from the moped and proceeded towards their village by foot, pulling the moped. No sooner they had reached Bhatapada crossing, then accused Rama Chandra Parida, Bhagban Parida, Murali Bharimal and Phakir Mohapatra being armed with Lathies and Kantas emerged out from a nearby canal and accused Ram Chandra Parida, Bhagban Pradhan inflicted Lathi blows to the deceased and to save his life, while he was running away, raising hulla "Marigali Marigali", some other miscreants also came to the spot from Ostapokhari side being armed with deadly weapons and conjointly all of them assaulted the deceased surrounding him from all sides. P.W.1, son of P.W.3 seeing the occurrence, rushed to his village and informed the incident to some of his villagers and requested them to come to the spot to save his father and uncle and accordingly, they arrived at the spot, by which time the miscreants had already fled away. They found P.W.3 lying in the embankment of a Nala and the deceased in the paddy field of one Choria Patra with bleeding injuries. While both the injured were being shifted on an Auto-rickshaw to Gambharimunda Primary Health Centre, on the way, the deceased expired. They found P.W.3 lying in the embankment of a Nala and the deceased in the paddy field of one Choria Patra with bleeding injuries. While both the injured were being shifted on an Auto-rickshaw to Gambharimunda Primary Health Centre, on the way, the deceased expired. P.W.4, the Medical Officer referred P.W.3 to M.K.C.G. Medical College and Hospital, Berhampur after recording his statement. 3. On getting information about the incident, P.W.10, the then Officer-in-Charge of Banpur Police Station went to Gambharimunda P.H.C., where P.W.1 orally reported the incident before him, which he reduced into writing as per Ext.1. Then, P.W.10 Ext.1 through A.S.I. of Police Jagannath Naik to the police station for registration of the case and accordingly it was registered as P.S. Case No. 93 of 1989 under Sections 147/148/302/307 read with Section 34 of IPC. 4. On 13.7.1989 at 7.00 A.M., P.W.10 held inquest over the dead body of the deceased in presence of witnesses at Gambharimunda P.H.C. and prepared the inquest report, sent the corps to Government Hospital, Banpur for autopsy, visited the spot, seized sample earth as well as blood stained earth, some pieces of human bones, a pair of plastic Chapals (M.O.II) belonging to deceased and one wooden Lathi (M.O.I) in presence of the witnesses and prepared seizure list in respect thereof. After autopsy of the dead body was completed, the doctor made over the wearing apparels of the deceased to the escorting Constable from whom P.W.1 seized one ghee-colour Punjabi shirt (M.O.III), one similar colour blood stained loose pant (M.O.IV), one printed blood stained under wear and one talisman (M.O.VI) at Banpur Police Station and prepared the seizure list, Ext.10. On 14.7.1989 at about 8.30 A.M., P.W.10 seized one Ovanti moped on production by P.W.1 and prepared seizure list as per Ext. XI and gave it in zima of P.W.1 on his executing a zimanama. In course of investigation, P.W.10 arrested the accused persons, seized their wearing apparels, examined some witnesses, and on 11.9.1989 on the eve of his transfer, made over charge of the case to his successor, P.W.9 who further investigated into the case. In course of investigation, P.W.9 examined P.W.3, sent some material objects for chemical examination and after conclusion of investigation submitted charge sheet against the accused persons numbering 29, one of whom having died after framing of charge, the case was abated against him. 5. In course of investigation, P.W.9 examined P.W.3, sent some material objects for chemical examination and after conclusion of investigation submitted charge sheet against the accused persons numbering 29, one of whom having died after framing of charge, the case was abated against him. 5. After the case was committed to the Court of Sessions, it was transferred to the Court of Addl. Sessions Judge, Khurda for disposal, who framed charge u/s 302 of IPC against accused, Murali Bharimal, Dama Parida, Ramchandra Parida and Bhagaban Pradhan and under Sections 148/307/120-B of IPC against all the accused persons including the above named 4 accused. Again all the accused persons except accused Murali Bharimal, Dama Parida, Ramachandra Parida and Bhagaban Pradhan were charged under Sections 302/149 of IPC. 6. The plea of the accused persons was complete denial of their involvement in the crime in question. It was their further plea that due to previous enmity, a false case had been foisted against them. To bring home the charges levelled against the accused persons, prosecution examined 11 witnesses in all as against none by the defence. After assessing the evidence on record, while acquitting some of the accused persons, the Addl. Sessions Judge convicted the others, including the accused-Appellants for different offences and sentenced them as stated earlier. 7. Being aggrieved with the judgment and order of conviction, accused Murali Bharimal, Dama Parida, Ramachandra Parida, Mukunda Bihari @ Muku Pradhan (hereinafter referred as Appellants) have preferred the present appeal. 8. Leraned counsel for the Appellants submitted that though independent witnesses were available, the prosecution examined only the interested witnesses. So their evidence should not have been relied upon by the trial Court. It is admitted by P.W.5 that he was an accused in a case u/s 302 of IPC with P.Ws.6 and 7, which was initiated at the instance of Appellants. P.W.6 also admitted that he along with P.Ws.5 and 7 was a witness against the Appellants in a case u/s 307 of IPC. Likewise P.W.7 admitted that he was a witness against the Appellants in another case of murder. Accordingly, the trial Court held that P.Ws.5, 6 and 7 were not in even term with the Appellants prior to the occurrence. Likewise P.W.7 admitted that he was a witness against the Appellants in another case of murder. Accordingly, the trial Court held that P.Ws.5, 6 and 7 were not in even term with the Appellants prior to the occurrence. At the same time it held that because those witnesses were not in good term with the Appellants, their evidence could not be brush aside altogether, but the same required to be scrutinized carefully. After scrutinizing the evidence of those witnesses and the evidence of P.Ws.1 and 3 carefully the trial Court passed the impugned judgment. 9. Learned Counsel for the Appellants, next submitted that as found from the evidence, the occurrence took place in the paddy field of one Choria Patra as against the charge that it took place at Bhatapada crossing. So when the place of occurrence differed as per the case of the prosecution and the evidence of the witnesses, the trial Court ought to have acquitted the Appellants on that ground alone. As found from the evidence on record, first the deceased was assaulted by some of the accused persons at Bhatpada crossing. Out of fear when the deceased took to his heels towards the paddy field he was surrounded by the accused persons including Appellant Murali Bharimal and Dama Panda both of whom pierced Kanta on his legs for which he fell down on the paddy field of Choria Patra. Thereafter, again he was assaulted. 10. Relying on the evidence of P.Ws.1, 3, 5, 6 and 7, besides the chemical report and the evidence of the doctor, the trial Court rightly held that Appellant Nos. 1 and 2 were responsible for the death of the deceased. It was also held rightly by that Court that all the Appellants in further of their common intention assaulted P.W.3 with dangerous weapons causing simple and grievous hurt attracting the offence under Sections 326/34 of IPC. Appellant-Rama Chandra Parida has also rightly been convicted u/s 324 of IPC. 11. Learned Counsel for the Appellants further submitted that as per the evidence on record Appellant Nos. 1 and 2 inflicted two piercing blows by Kanta (one blow each) on the lower part of the legs of deceased. Had they intended to commit his murder, they could have pierced the Kanta on the vital parts of his body, instead of his legs. Moreover, they inflicted only one piercing Kanta blow each. 1 and 2 inflicted two piercing blows by Kanta (one blow each) on the lower part of the legs of deceased. Had they intended to commit his murder, they could have pierced the Kanta on the vital parts of his body, instead of his legs. Moreover, they inflicted only one piercing Kanta blow each. From the nature of injuries and the weapons, Appellant Nos. 1 and 2 were armed with, it could not be said that they had knowledge that because of their assault, deceased was likely to die. So, according to the learned Counsel for the Appellants, Appellant Nos. 1 and 2 ought to have been convicted u/s 304 Part I of IPC instead of 302 of IPC. We are in agreement with the learned Counsel for the Appellants in this regard. So we alter the order of conviction from Section 302 to one u/s 304 Part I of IPC and while acquitting Appellant Nos. 1 and 2 of the charge u/s 302 convict them u/s 304 Part I of IPC. As it appears from record, Appellant Nos. 1 and 2 have already been detained in custody for more than ten years. If they are sentenced to undergo imprisonment, which they have already spent in judicial custody, it would meet the ends of justice. 12. With regard to sentence for the offence under Sections 326/34 of IPC passed by the trial Court, learned Counsel for the Appellants submitted that as transpired from the evidence of P.W.4, the doctor, he found altogether nine injuries on the person of P.W.3, of which, seven injuries consist of laceration and bruises. There is no evidence that those injuries were grievous in nature. The other two injuries, which were punctured and incused wounds, were attributed to Appellants-Murali Bharimal and Dama Parida. He further submitted that the occurrence took place on 12.7.1989. In the meantime, more than 19 years have elapsed. At the time of incident, Appellants-Murali Bharimal, Dama Parida and Rama Chandra Parida and Mukunda Bihari @ Maku Pradhan were aged about 39 years, 50 years, 40 years and 33 years respectively. So, now the Appellants are within the age group of 52-70 years. If Appellant Nos. In the meantime, more than 19 years have elapsed. At the time of incident, Appellants-Murali Bharimal, Dama Parida and Rama Chandra Parida and Mukunda Bihari @ Maku Pradhan were aged about 39 years, 50 years, 40 years and 33 years respectively. So, now the Appellants are within the age group of 52-70 years. If Appellant Nos. 1 and 2 are sentenced to undergo R.I. for 10 years each for the offence u/s 304 Part I of IPC and the sentence passed u/s 326 of IPC runs concurrently as ordered they would be released forthwith, since they have already undergone imprisonment for more than 10 years. At this stage, if the Appellant Nos. 3 and 4 are sentenced to undergo imprisonment for four years each, most likely they would die in the Cell itself. So, learned Counsel for the Appellants prayed to reduce the sentence of imprisonment under Sections 326/34 of IPC. 13. Regard being had to the submission of learned Counsel for the Appellants, we reduce the sentence from four years R.I. to two years R.I. for the offence under Sections 326/34 of IPC with order that custodial period shall be set off. 14. Accordingly, the appeal is dismissed with alteration of order of conviction u/s 302 to one u/s 304 Part I of IPC and while acquitting Appellant Nos. 1 and 2 of the charge u/s 302 of IPC we convict them u/s 304 Part I of IPC. The order of R.I. for four years u/s 326/34 of IPC passed against the Appellants is reduced to R.I. of two years. We do not want to interfere with the order of conviction and sentence as passed u/s 324 of IPC against Appellant No. 3. The sentence passed against Appellant Nos. 1 to 3 are to run concurrently. The custodial period of the Appellants are set off. Since Appellant Nos. 1 and 2 have already undergone sentence for more than 10 years, they shall be released forthwith. Issue warrant of arrest against Appellant Nos. 3 and 4 to be produced before the trial Court to serve the remaining sentence of imprisonment. P.K. Tripathy, J. 15. I agree. Final Result : Dismissed