JUDGMENT : A.S. Naidu, J. - Challenging the order of conviction & sentence dated 14th November, 1995 passed by Learned Sessions Judge, Puri, convicting the Appellants for commission of offence u/s 302/34 of the Indian Penal Code (in short, "I.P.C") & sentencing each of them to undergo R.I. for life in S.T. No. 498/94 is assailed by the State in this appeal. 2. The incident in question took place on 5.4.1994. On the said fateful day, the informant Mahendra Harichandan (P.W.3) on being informed that he is required by Banambar Behera (P.W.5), went to his house & there he was told by P.W. 5 that accused Paria @ Parikhita Behera had picked up quarrel with Dillip @Tima & was in an agitating mood. He requested the informant to take Dillip along with him & leave him at Delanga railway station so that he can go to his uncle's house for few days. As per his request, P.W. 3 proceeded to Delanga railway station along with Dillip as his pillion rider. On the way near Kothaghar of the village accused Paria holding a sword in his hand tried to stop the scooter. P.W. 3 however did not stop the scooter & proceeded. Being enraged, accused Paria dealt a blow with the sword on the informant's hand, but as the informant removed his hand, it caused no injury. Thereafter, accused dealt a blow with the sword on the back of Dillip @ Tima, consequently both Dillip & P.W. 3 fell down on the ground. P.W. 3 immediately stood up & ran away from the place out of fear. After proceeding a little distance, he turned back & found that accused-Paria & other accused persons were attacking Dillip & assaulting him indiscriminately with sword & other deadly weapons. Noticing the said incident he raised a hullah, consequently several people reached the place & the accused persons left the place of occurrence. The injured Dillip was then removed to the hospital where he succumbed to the injuries. 3. Information being lodged in Delanga Police Station, P.S. case was registered, which was converted to G.R. Case No. 480 of 1994 in the Court of S.D.J.M., Puri. The police visited the spot, examined the witnesses, conducted inquest & after post mortem of the dead-body, submitted charge-sheet against four accused persons. 3. Information being lodged in Delanga Police Station, P.S. case was registered, which was converted to G.R. Case No. 480 of 1994 in the Court of S.D.J.M., Puri. The police visited the spot, examined the witnesses, conducted inquest & after post mortem of the dead-body, submitted charge-sheet against four accused persons. Learned S.D.J.M. after due application of mind & on being satisfied that prima facie case was made out, took cognizance of the offence & thereafter committed the case to the Court of Session for trial. 4. The plea of the defence was complete denial. The accused persons further took the plea that a false case had been foisted against them out of previous enmity. 5. The prosecution in order to bring home the guilt of the accused persons got examined nine witnesses. P.W. 3 is the informant, P.W. 5 is the father of the deceased, P. Ws.1,4,6 & 8 were the occurrence witnesses, P.W. 2 is the seizure witness, P.W. 7 is the doctor, who conducted autopsy over the dead body. 6. The Sessions Court after discussing the evidence in extenso & relying upon the evidence of the Doctor, P.W. 7 & the post mortem report, Ext. 4 arrived at a conclusion that the death of Dillip was homicidal in nature & that the accused persons, namely, Paria @ Parikhita Behera, Babuli Behera, & Dwija Behera were responsible for the cause of the death in furtherance of their common intention & on being satisfied that the prosecution has been able to establish its case against the accused persons beyond all reasonable doubt, convicted the aforesaid three persons u/s 302/34, Indian Penal Code & acquitted the accused Dhulia Behera on the ground of paucity of evidence. Learned Sessions Judge after hearing on the question of sentence, directed that the three accused persons shall undergo rigorous imprisonment for life. 7. The said order of conviction & sentence, as stated earlier, is assailed in this Criminal Appeal, mainly on the ground that the prosecution story, as narrated in the F.I.R., Ext. 2 is contradictory to the evidence of the informant (P.W.3) & on that ground alone the prosecution case should have been disbelieved. According to Learned Counsel for the Appellants, there are lots of discrepancies between the facts stated in the Court by the eye witnesses vis-a-vis the statements recorded u/s 161, Code of Criminal Procedure. 2 is contradictory to the evidence of the informant (P.W.3) & on that ground alone the prosecution case should have been disbelieved. According to Learned Counsel for the Appellants, there are lots of discrepancies between the facts stated in the Court by the eye witnesses vis-a-vis the statements recorded u/s 161, Code of Criminal Procedure. in course of investigation & as such the Learned Sessions Judge should not have convicted the Appellants relying upon such contradictory statements. The further contention of Learned Counsel for the Appellants is that the post mortem report & the evidence of the doctor (P.W.7) does not corroborate with the statement of the eye witnesses so far as infliction of injuries by the Appellants are concerned & on that ground alone, the evidence should have been discarded. 8. All these submissions are strongly repudiated by Mr. Kishore Mishra, Learned Addl. Government Advocate appearing for the State. According to Mr. Mishra, Learned Sessions Judge has taken pain to discuss the evidence both oral & documentary in proper perspective & the submissions advanced are not just & proper. Relying upon the evidence of P. Ws.1,4,5 & 6 as well as the evidence of P.W. 3, the informant, Mr. Mishra submitted that a cumulative reading of their depositions made in Court clearly establishes that the prosecution was able to prove the case beyond all reasonable doubts & it is a fit case where the order of conviction requires no interference. 9. Heard Learned Counsel for the parties at length. Perused the evidence & also other documents meticulously. In the F.I.R. it has been clearly mentioned that a quarrel ensued between accused Parikhita & Dillip (the deceased) on the same day & being enraged Parikhita had left the place. It appears, P.W. 5 sent for the informant, P.W. 3 for the purpose of sending Dillip away from the village to avoid further confrontation. The said fact also gives an impression that deceased Dillip & Parikhita & other Appellants were at dragger's head & the accused persons were waiting for an opportunity to satisfy their anger. 10. Perusal of the evidence of the eye witnesses leads to an irresistible conclusion that the same are trustworthy, believable & suffer from no infirmities. Learned Sessions Judge has rightly believed upon the said statements. The submissions made by Mr. 10. Perusal of the evidence of the eye witnesses leads to an irresistible conclusion that the same are trustworthy, believable & suffer from no infirmities. Learned Sessions Judge has rightly believed upon the said statements. The submissions made by Mr. Rath that the same suffers from contradictions cannot be accepted more so because the omissions or additions made are minor in nature & cannot be nomenclatured as intentional insertion of new facts in support of the prosecution case. The depositions of the witnesses were recorded almost one year after, thus, it is expected that there would be some variation in the statement made by them at the investigation stage & the statements made in Court. This Court after going through the deposition of the eye witnesses is quite satisfied that the omissions & commissions neither materially affect nor are vital to the prosecution case. On the other hand, it gives an impression that the witnesses are truthful & they have narrated the facts sacrosanctly. After going through the evidence of P.W. 3, the informant, who was declared hostile, this Court wonders as to why the prosecution made such a declaration. In fact, P.W. 3 has not made any inconsistent statement. A comparison of his deposition made in the Court & the facts stated in the F.I.R. reveals that the said statements are substantially same except some trifle differences in the description, which are not vital to the case. The Sessions Judge has rightly held that only because P.W. 3 has been declared hostile, his evidence should not be rejected. We also agree with the conclusions arrived at by Learned Sessions Judge. In view of the discussions made above, we are satisfied that the prosecution was able to establish the guilt of the accused persons beyond all reasonable doubts. 11. The only other question, which needs to be considered, is as to whether the Appellants should be held to have committed the offence of culpable homicide. From the evidence of P.W. 5 & P.W. 3, as well as the narrations made in the F.I.R. that a quarrel ensued between the accused Parikhita & Dillip on the same day & the accused being enraged left the place & that is the reason why P.W. 5 called upon P.W. 3 & requested him to leave Dillip at Delanga Railway station so that he would go to his maternal uncle's house for some days. Unfortunately, however, on the way to the railway station they came across the accused persons who were still fomenting with anger. After seeing the deceased, it appears the accused persons on the spur of the moment attacked him thereby causing grievous injuries, which took the life of Dillip. 12. Considering the aforesaid facts & circumstances & the further fact that the accused persons are already in custody for about 15 years, this Court feels that ends of justice & equity will be better served if the conviction is modified to one u/s 304, part-II read with Section 34, Indian Penal Code in stead of Section 302 read with Section 34, Indian Penal Code. 13. Accordingly, the appeal is allowed in part, the impugned judgment convicting the Appellants u/s 302/34, I.P.C. is set aside. Instead they are convicted for commission of offence u/s 304, Part-II read with Section 34, I.P.C & sentenced to undergo rigorous imprisonment for the period already undergone. If the Appellants are in custody, they may be set at liberty forthwith, unless their detention is required in any other case. S.C. Parija, J. 14. I agree. Appeal allowed. Final Result : Allowed