JUDGMENT : A.S. Naidu, J. - The judgment and order dated 30.4.1996 passed by the learned Addl. Sessions Judge, Balangir acquitting the accused persons of the charges u/s 302, I.P.C. in S.C. No. 65/18/9 of 1994-95 is assailed in G.A. No. 25 of 1997 by the State. Similarly the order of conviction passed under Sections 323/34 I.P.C. by the learned Addl. Sessions Judge, Balangir in S.C. No. 65/ 18/9 of 1994-95 is assailed in CRLA No. 149 of 1996 by the accused persons. 2. As both the appeals involve same facts and points of law, the same were heard together and this common judgment disposes of both the appeals. 3. The prosecution case was set to motion on the basis of an F.I.R. lodged on 09.12.1993 before Saintala Police Station in the district of Balangir alleging that on 09.12.1993 at about 2.00 P.M. Amiya Mishra, Budu Rout and some of their friends of village Dharapgarh came to the Pan shop of Lalu Dandia to take pan. After a short while the accused persons came there and accused Padu Dandia dealt a lathi blow on the head of Amiya. Consequent thereof he fell down on the ground. Thereafter other accused persons assaulted him with different weapons like lathis, tabli and tangia. Amiya sustained grievous injuries and succumbed to the same. After receiving the F.I.R. a police case was registered which was subsequently converted to G.R. Case No. 336 of 1993 in the court of the learned S.D.J.M., Titilagarh. After completion of investigation charge sheet was filed. The learned Magistrate after going through the police records and on being prima facie satisfied took cognizance and thereafter committed the case to the Court of Session for trial. 4. The plea of defence was of complete denial. It is stated that due to previous rivalry the accused persons were falsely implicated. The further plea of the accused was that Amiya had a tussle with Shankar Bhoi and during the said tussle, he fell down on the metal heaps stacked by the side of the road and sustained injuries and succumbed to the said injuries. 5. In order to substantiate its case the prosecution got 10 witnesses examined whereas on behalf of defence no witness was examined. 5. In order to substantiate its case the prosecution got 10 witnesses examined whereas on behalf of defence no witness was examined. However, the certified copy of the charge sheet in G.R. Case No. 122 of 1992 of the court of the learned S.D.J.M., Titilagarh was filed and was marked as Ext. B, to show that Amiya was facing trial for commission of offence u/s 509 I.P.C. Defence also filed Ext.C which reveals that Amiya was an accused in G.R. Case No. 408 of 1991 and it was alleged that he had committed offence u/s 307 I.P.C. The defence also filed the certified copy of the charge sheet in G.R. Case No. 408 of 1991 (Ext.D) which reveals that Amiya had assaulted one Abdul Guffer in order to kill him. Exts. E and F were also filed by the defence in order to establish that Amiya had committed offence under Sections 341/323/294/506 I.P.C. and he was a habitual and noted criminal. 6. Out of ten witnesses examined by the prosecution P.W.2 was the Ward Member and the seizure witness. He deposed that accused Padmamukha, Ananda Dandia, Jhagu and Sana Budek while in police custody disclosed that they have concealed the weapon of offences in their respective houses and led the police and witnesses to their houses and gave recovery of the same. During cross-examination the said witnesses clearly stated that bloodstains were available on M.O.I to M.O.IV. 7. P.Ws. 1, 5 and 10 were three persons who came to the Pan shop along with Budu Dandia and Amiya. P.W.3 was Anr. witness who had also accompanied Amiya and had seen the occurrence. P.W.4 was the inquest witness. He was however, declared hostile. P.W.6 was the Constable who accompanied the dead body for postmortem. P.W.8 was the Doctor who treated Budu Dandia, Budu Rout and Ananda Dandia and stated that they had sustained certain injuries. P.W.9 was the Investigating Officer. 8. The learned Addl. Sessions Judge after threadbare discussion of the evidence both oral and documentary, relying upon the evidence of the Doctor came to a positive finding that the death of Amiya was homicidal in nature. He further held that the accused persons had also assaulted the companions of Amiya. After going through the evidence this Court is also satisfied that the death of Amiya was homicidal in nature. The learned Addl. He further held that the accused persons had also assaulted the companions of Amiya. After going through the evidence this Court is also satisfied that the death of Amiya was homicidal in nature. The learned Addl. Sessions Judge after vivid discussion held that the prosecution was able to substantiate its case against the accused Padmamukha and found him guilty for commission of offences u/s 304 Part-II I.P.C- and all the other accused except accused Tankadhar and Padu were found guilty of commission of offences u/s 323 read with Section 34 of I.P.C. and convicted them there under. After considering the age of Padmamukha the learned Addl. Sessions Judge taking a lenient view imposed a punishment of five years R.I. Taking into consideration the nature of the overt acts committed, other accused persons were sentenced to undergo R.I. for six months and to pay a fine of Rs. 500/- each, in default to undergo R.I. for a further period of one month for commission of offences under Sections 323/34 I.P.C. 9. Learned Addl. Government Advocate forcefully submitted that in view of the clear evidence of the witnesses, which had gone unchallenged, the learned Addl. Sessions Judge acted illegally in not convicting Padmamukha for commission of offences u/s 302 I.P.C. and the findings are contrary to law. It is further submitted that the learned Addl. Sessions Judge made much of minor omissions in the evidence of P.W.10, whereas the said omissions being trifle in nature should have been ignored. On the whole, according to learned Addl. Government Advocate the order of conviction u/s 304 (Part-II) I.P.C. was not just and proper and the same may be converted to one u/s 302 I.P.C. 10. On the other hand learned Counsel appearing for the accused forcefully submitted that the discrepancies in the evidence of different witnesses are very much pertinent and should not be ignored. It is stated that the evidence of the seizure witness is full of discrepancies. It is further stated that the defence was able to prove that the deceased Amiya was a hardened criminal, involved in several litigations thus he had number of enemies who might have murdered him. It is stated that the evidence of the seizure witness is full of discrepancies. It is further stated that the defence was able to prove that the deceased Amiya was a hardened criminal, involved in several litigations thus he had number of enemies who might have murdered him. According to learned Counsel for the accused only because the accused persons had previous enmity with Amiya they have been falsely roped in the present case though they were innocent and that the prosecution had failed to establish their involvement in commission of offences beyond all reasonable doubts. 11. In order to appreciate the arguments advanced this Court went through the evidence thoroughly. It appears that the learned Addl. Sessions Judge had discussed the evidence and considered the implication of each of the accused. A reading of the entire judgment reveals that the learned Addl. Sessions Judge had appreciated the evidence in proper perspective and the conclusions arrived at by him are just and proper. Law is well settled that while dealing with an appeal unless this Court is satisfied that apparent error has been committed by the trial court in appreciating the evidence and/or the conclusion arrived at are contrary to the evidence and/or the trial court has not considered vital evidence and/or the findings arrived at are based on surmises and conjecturers and not borne out of cogent evidence, may not interfere with the same. It is no more res integra that while discussing evidence even if this Court finds that a different view is possible, it should be slow to take a contrary view. 12. A cumulative assessment of all the materials reveal that there are vital discrepancies between the story narrated in the F.I.R. and the facts stated in their deposition by the eyewitnesses in Court. According to the F.I.R., P.W.3 was not a witness to the occurrence. The informant has not given any explanation with regard to the omission. There is also variation between the deposition of the informant and the facts stated in the F.I.R. The eyewitnesses have not come up with clean case. According to them, Padmamukh Dandia only gave one blow. The evidence also does not tally with the injuries found by the doctor. The informant has not given any explanation with regard to the omission. There is also variation between the deposition of the informant and the facts stated in the F.I.R. The eyewitnesses have not come up with clean case. According to them, Padmamukh Dandia only gave one blow. The evidence also does not tally with the injuries found by the doctor. That apart it is very much apparent that long standing enmity existed between the two groups and at the time of occurrence a tussle ensued between Amiya (deceased) who was involved in several other criminal cases, with the accused persons. Considering all these aspects and taking into consideration the vital omissions the learned Sessions Court has rightly came to the conclusion that this is a case where Padmamukha should be convicted u/s 304 (Part-II) I.P.C. and not u/s 302 I.PC. This Court finds no infirmity in the said conclusion and declines to interfere with the same. 13. In view of the aforesaid discussions this Court is satisfied that as the learned Addl. Sessions Judge, Balangir has properly appreciated the evidence and the conclusions arrived at are just and proper, no interference is warranted with the order of conviction. So far as sentence is concerned, it appears that Padu @ Padmamukha Dandia is more than 70 years by now. Taking into consideration the said fact and the sentence already undergone by him while convicting him for commission of offence u/s 304 Part-II I.P.C. this Court sentences him to undergo R.I. for three years instead of five years. The sentence to undergo R.I for six months and to pay a fine of Rs. 500/- each, in default to undergo R.I. for one month awarded by the learned Addl. Sessions Judge so far as other accused persons are concerned stands confirmed. With the aforesaid observations the Government Appeal and Criminal Appeal are disposed of. S.C. Parija, J. 14. I agree. Final Result : Dismissed