JUDGMENT : 1. Heard further argument from the parties. Hearing is concluded & the judgment is as follows. 2. The sole Respondent is one of the two accused persons, who faced the trial in the Court of Additional Chief Judicial Magistrate, Puri for the offence u/s 408, I.P.C. in G.R. Case No. 1234 of 1980. It was a case of allegation against two accused persons of committing criminal breach of trust with respect to the ornaments of the deity Satyabadi Gopinath at Sakhigopal. After a full-dressed trial, on 07.12.1988, i.e., eight years after the occurrence the Learned Additional C.J.M. recorded the order of conviction & imposed the punishment. The sole Respondent challenged the order of conviction in Criminal Appeal No. 3 of 1989 in the Court of Sessions Judge, Puri. On analysis of the evidence on record & considering the contention of both the parties, Learned Sessions Judge set aside the order of conviction on the ground that the conviction recorded by the Trial Court was on the oasis of surmises & not on the clear proof of criminal breach of trust. 3. It is stated at the Bar that the lost gold ornaments were recovered in course of the investigation & those were marked as M. Os. I, II & III. In course of hearing of this Govt. Appeal, today the accused-Respondent has filed an affidavit stating that he does not lay any claim on the ornaments, marked M. Os. I to III & such properties be taken for the Satyabadi Gopinath Temple, Sakhigopal. Under such circumstance, the impediments created by the judgment of the Appellate Court is removed because of the concession granted by the Respondent &, under such circumstance, after lapse of about 29 years from the date of occurrence there is no necessity to interfere with the order of acquittal, in as much as, save & except the discussion relating to the ownership & status of the property the other findings recorded by the Appellate Court does not suffer from any illegality or perversity. Accordingly, the Government Appeal is dismissed, but order is passed that the seized ornaments, i.e., M. Os. I, II & III be handed over to the Satyabadi Gopinath temple at Sakhigopal & the disposal of those properties be made accordingly. 4. Accordingly, the Government Appeal is dismissed, but order is passed that the seized ornaments, i.e., M. Os. I, II & III be handed over to the Satyabadi Gopinath temple at Sakhigopal & the disposal of those properties be made accordingly. 4. These two appeals are directed against the judgment dated 05.12.2000, passed by the Additional Sessions Judge, Bhadrak, in S.T. No. 55/120 of 1998, holding the accused persons-Appellants guilty of offences under Sections 302/323 read with Section 34 Indian Penal Code & convicting them thereunder. 5. The prosecution case, in brief, is that on 29.10.1997 deceased Surendra Kumar Behera had been to his field with his labourer (P.W.2) to cut Balunga (wild paddy). At about 5.30 P.M. while they were returning from the field, the two accused persons (Appellants in both the appeals) stopped them on the way near Madhapur Sasanchhak & challenged deceased Surendra as to why he had filed a case against them. When the deceased Surendra replied that he did not know anything about the case, both the accused persons started assaulting him by fist blows & slaps. At that time, accused Anirudha @ Benga (Appellant in Crl. Appeal No. 16 of 2001) snatched away the Bahungi (split bamboo) from the hand of the deceased Surendra & dealt a blow on his back & when he attempted to give another Bahungi blow, P.W.2 caught hold of the accused Anirudha along with Bahungi. At that time, accused Bidyadhar @ Bidu (Appellant in Crl. Appeal No. 23 of 2001) brought out a lathi which had been concealed in a nearby bush & dealt a blow by means of the said lathi on the head of deceased Surendra: as a result of which he fell down. Thereafter accused Bidyadhar dealt 3 to 4 lathi blows on the head of the deceased Surendra. Accused Anirudha also assaulted-deceased Surendra by lathi & both the accused persons chased P.W.2 in order to assault him. However, P.W.2 managed to escape & subsequently after the accused persons left the spot, P.W.2 came again to the spot & gave water to deceased Surendra & carried him to nearby Mahadev Temple of the village, from where he was taken to Bhadrak Hospital. In view of the serious head" injury sustained by Surendra, he was referred to S.C.B. Medical College & Hospital, Cuttack, where he succumbed to the injuries. In view of the serious head" injury sustained by Surendra, he was referred to S.C.B. Medical College & Hospital, Cuttack, where he succumbed to the injuries. Coming to know about the incident from P.W.2, the informant (P.W.1) presented a written report before the O.I.C., Bhadrak (R) Police Station, which was registered as an FIR & investigation was taken up. In course of investigation, incriminating articles were seized, post-mortem was conducted over the dead body of the deceased at Cuttack & after completion of investigation, charge sheet was submitted against the two accused persons. 6. The plea of the defence was one of complete denial & that the accused persons have been falsely implicated due to previous dispute between the parties. At a later stage of the trial, the defence took a new plea that while deceased Surendra was carrying paddy sheaves in a Bhar to his thrashing floor, he suddenly fell down & his head dashed against a stone, as a result of which, he sustained bleeding injury on his head & was shifted by his family members to the hospital. 7. The prosecution examined 12 witnesses in support of the charges, out of whom, P.W.1 is the informant, who is the wife of deceased Surendra, P. Ws.2 & 4 are eye witnesses to the occurrence & P.W.3 is the brother of deceased Surendra who is a post-occurrence witness. P. Ws.5 & 6 are the doctors who had examined P.W.2 & the deceased Surendra & P.W.7 is the scribe of the FIR.P.W.8 is a witness to the seizure. P.W.10 is the doctor, who conducted the post-mortem examination over the dead body of the deceased Surendra. P. Ws.9, 11 & 12 are the I. Os. 8. The defence examined two witnesses in support of its case. 6. P.W.6 is the doctor of Bhadrak Hospital, who had at first examined deceased Surendra at 6.35 P.M. on 29.10.1997 & found three injuries on his head as per the Injury Report (Ext.4). The said Injury Report further disclosed that the brain matter of the deceased had come out. P.W.6 had opined that the injuries were grievous in nature & probably caused by a lathi. The bed head ticket (Ext. 5) revealed that the deceased Surendra was referred to S.C.B. Medical College & Hospital, Cuttack, at 7.30 P.M on 29.10.1997. The said Injury Report further disclosed that the brain matter of the deceased had come out. P.W.6 had opined that the injuries were grievous in nature & probably caused by a lathi. The bed head ticket (Ext. 5) revealed that the deceased Surendra was referred to S.C.B. Medical College & Hospital, Cuttack, at 7.30 P.M on 29.10.1997. The doctor (P.W.10) who conducted the post-mortem examination over the dead body of deceased Surendra at S.C.B. Medical College & Hospital, Cuttack, stated in his evidence that he found four external injuries on the head of deceased Surendra, which were anti-mortem in nature. P.W.10 opined that all the injuries were inflicted by a hard & blunt weapon & the cause of death was shock & haemorrhage due to the injuries on the vital organs & the death was homicidal in nature. 7. P.W.2, who was the labourer of deceased Surendra & had accompanied him to the field & was eye witness to the occurrence, has fully supported the prosecution case. P.W.2 in his evidence has reiterated that while he along with deceased Surendra were returning from the field, both the accused persons suddenly appeared near Madhapur Chhak, stopped P.W.2 & deceased Surendra & asked the deceased as to why he had filed a case against them. When deceased Surendra replied that he did not know anything about the case, both the accused persons assaulted deceased Surendra with fist blows & slaps. Then accused Anirudha snatched away the Bahungi from the hand of deceased Surendra & dealt a blow with the said Bahungi on his back. On seeing this, P.W.2 caught hold of accused Anirudha along with Bahungi by embracing him. At that time accused Bidyadhar brought out a lathi which had been concealed under a nearby bush & dealt a blow by means of the said lathi on the head of deceased Surendra, as a result of which, he fell down. Thereafter accused Bidyadhar dealt 2 to 4 lathi blows on the head of the deceased. Thereafter accused Anirudha also assaulted deceased Surendra by means of Bahungi. P.W.2 further stated in his evidence that when he caught hold of accused Anirudha along with Bahungi, he sustained swelling injuries on his head, which fact finds support from the Injury Report (Ext.3). Thereafter accused Bidyadhar dealt 2 to 4 lathi blows on the head of the deceased. Thereafter accused Anirudha also assaulted deceased Surendra by means of Bahungi. P.W.2 further stated in his evidence that when he caught hold of accused Anirudha along with Bahungi, he sustained swelling injuries on his head, which fact finds support from the Injury Report (Ext.3). P.W.2 further stated that when both the accused persons threatened him to assault, he ran away towards village & after departure of the accused persons from the spot he again came there & gave water to the deceased & carried him on his shoulder to the Mahadev Badi of their village & shouted that accused Benga & Bidu had assaulted deceased Surendra, which fact finds corroboration from the evidence of the informant (P.W.1), who is the wife of deceased Surendra. In his cross-examination, P.W.2 stated that while he was holding accused Anirudha @ Banga, accused Bidyadhar @ Bidu was assaulting deceased Surendra & that he raised alarm. P.W.2, further stated in his cross-examination that he carried the deceased to Mahadev Badi, where about 50 to 100 persons gathered including the family members of deceased Surendra & he (P.W.2) had narrated the incident before them that the two accused persons had assaulted deceased by Bahungi & lathi. 8. P.W.4, who is also an eye witness to the occurrence, has fully supported the prosecution case & corroborated the version of P.W.2 regarding the assault by the two accused persons on deceased Surendra. P.W.3 is the brother of deceased Surendra, who in his evidence had stated that while he was cutting grass in his land, he heard shouts of deceased Surendra & P.W.2 & while he was proceeding to the spot on the ridge, both the accused persons chased him holding lathis, for which he ran towards his house through the paddy field. On the way at Mahadev Padia he saw P.W.2 keeping the body of the deceased on the ground with lacerated bleeding injury on his head. P.W.3 further stated that P.W.1 changed the blood stained full pant of the deceased by a lungi & thereafter he took him to Bhadrak hospital, which fact is corroborated by the evidence of P.W.1. On the way at Mahadev Padia he saw P.W.2 keeping the body of the deceased on the ground with lacerated bleeding injury on his head. P.W.3 further stated that P.W.1 changed the blood stained full pant of the deceased by a lungi & thereafter he took him to Bhadrak hospital, which fact is corroborated by the evidence of P.W.1. P.W.3 further stated that he shifted deceased Surendra from Bhadrak hospital to Cuttack by an ambulance & the doctor of S.C.B. Medical College & Hospital, Cuttack after examining the deceased declared him dead. P.W.3 further stated that in his presence, the police officer of Mangalabag Police Station, Cuttack, held inquest over the dead body of the deceased as per Ext.2. 9. Learned Additional Sessions Judge on the basis of the evidence on record, both oral & documentary, came to hold that both the accused persons had assaulted deceased Surendra by means of lathi & Bahungi causing severe head injury, which resulted in his death. Learned Additional Sessions Judge further found that both the accused persons had the necessary mensrea & were determined to take away the life of deceased Surendra on that day, for which they had made necessary arrangement & planning & had accordingly brought a bamboo lathi & concealed the same inside the bush & when they saw deceased was returning from the field along with P.W.2, they took the opportunity to translate their intention into action. Further, as both the accused persons had repeatedly assaulted the deceased on his vital organs like brain & skull, even after he fell down, they had the necessary intention of causing the death of deceased Surendra. Accordingly, Learned Additional Sessions Judge held both the accused persons guilty of charges Under Sections 302/323 r/w Section 34 Indian Penal Code & convicting them there under. 10. Learned Counsel appearing for accused Anirudha @ Benga in Criminal Appeal No. 16 of 2001 has forcefully submitted that as there was no allegation that accused Anirudha had dealt any blow with the Bahungi on the head of deceased Surendra, which ultimately resulted in his death, the conviction of accused Anirudha u/s 302 Indian Penal Code is not proper & justified. It is further submitted that as the assault by accused Anirudha with the Bahungi was only on the body of deceased Surendra & not on his vital organs like brain & skull & there was no corresponding injury on the body of the deceased, the conviction of accused Anirudha u/s 302 Indian Penal Code cannot be sustained. In this regard, it is submitted that as the evidence of P.W.2 clearly goes to show that accused Bidyadhar @ Bidu brought out a lathi from the nearby bush & assaulted deceased Surendra on his head & also dealt further blows on the head of deceased after he fell down & there were only four external injuries on the head of deceased Surendra as has been indicated in the post-mortem report, the conviction of accused Anirudha is based on surmises & conjectures & not supported by any clear & cogent evidence on record. It is further submitted that there being discrepancies & contradictions in the evidence of the witnesses & further as the socalled eye witness (P.W.4) was examined by the police after two months from the date of occurrence, no reliance should have been placed on such evidence in order to hold accused Anirudha guilty of offence u/s 302 Indian Penal Code. 11. Learned Counsel appearing for accused Bidyadhar @ Bidu (Appellant in Criminal Appeal No. 23 of 2001) vehemently pleaded that there being no premeditation & prior planning to assault deceased Surendra & the same having taken place on the spur of the moment during altercation between the parties & as the accused Anirudha had assaulted with the Bahungi, which the deceased Surendra was carrying & as accused Bidyadhar had assaulted with a lathi, which was lying in a nearby bush, it cannot be said that the accused persons had any motive or intention to kill the deceased. It is further submitted that as the accused persons had assaulted with Bahungi & lathi & not by means of any deadly weapons, it cannot be said that the accused persons had the mensrea or intention to kill Surendra. Accordingly, it is submitted that the entire incident having taken place in the heat of passion & on the spur of the moment, it can at best be a case u/s 304 Part-II Indian Penal Code & not u/s 302/34 Indian Penal Code. 12. Accordingly, it is submitted that the entire incident having taken place in the heat of passion & on the spur of the moment, it can at best be a case u/s 304 Part-II Indian Penal Code & not u/s 302/34 Indian Penal Code. 12. On an analysis of the evidence on record, it is seen that P.W.2 in his evidence as well as in his statements recorded u/s 164 Code of Criminal Procedure has clearly stated that both the accused persons had assaulted deceased Surendra even after he fell down. Further, the opinion of the doctor (P.W.10) clearly goes to show that the injuries found on the body of deceased Surendra were possible by a hard & blunt weapon, like Bahungi & lathi. Hence the plea of accused Anirudha (Appellant in Crl. Appeal No. 16 of 2001) that he had not assaulted on the head of deceased Surendra cannot be accepted. From the evidence of P. Ws.2,3 & 4, it is clear that while the deceased Surendra along with P.W.2 were returning from the field, both the accused persons stopped them on the way & asked the deceased as to why he had filed a case against them & during the altercation which ensued, both the accused persons assaulted deceased Surendra with Bahungi & lathi. There is no clear & cogent evidence on record to show that the accused persons had carried the weapon of offence to the spot & the assault on deceased Surendra appears to be an out come of the altercation between the parties & committed on the spur of the moment & in the heat of passion. In absence of any premeditation & pre-planning to commit the assault & there being no evidence to show that the accused persons had come to the spot with the motive & intention of causing death of deceased Surendra, we feel, the conviction, of the accused persons (Appellants in both the appeals) u/s 302 Indian Penal Code is not proper & justified & instead, the interest of justice would be best served, if the conviction of both the accused persons u/s s 302/34 Indian Penal Code is modified to one u/s 304 Part-II r/w Section 34 Indian Penal Code. 13. 13. In view of the above, the conviction of accused Anirudha @ Benga (Appellant in Criminal Appeal No. 16 of 2001) & accused Bidyadhar @ Bidu (Appellant in Criminal Appeal No. 23 of 2001) u/s s 302/323 read with Section 34 Indian Penal Code is set aside & instead both the accused persons are convicted u/s 304 Part-II/34 Indian Penal Code & sentenced to undergo imprisonment for a period of 5 years each. It is needless to say that the period of imprisonment already undergone by the accused persons shall be treated as set off. 9. With the above modifications, both the Criminal Appeals are accordingly disposed of. A.S. Naidu, J. I agree.