JUDGMENT : A.S. Naidu, J. - Appellants along with four others faced trial for commission of offence u/s 302/34 of the Indian Penal Code (in short, "I.P.C") on the allegation that they had caused the death of one Jadaba Barik in furtherance of their common intention. Learned Sessions Judge, Kalahandi by judgment dated 26.4.1996 convicted the Appellant alone u/s 302, Indian Penal Code and sentenced him to undergo imprisonment for life in S.C. No. 7 of 1993. Assailing the said order of conviction, the present appeal is filed. 2. The incident took place way back in the year 1992. It is alleged by the informant (P.W. 1) that on 24.9.1992 at about 6.00 AM. his younger brother Jadaba went to the house of his elder brother to borrow one yoke. All of a sudden, he heard the shouts of Jadaba. He rushed to the spot and saw that accused Jogendra Barik, who is also one of his brothers, was assaulting Jadaba with a "Tabal Tangia" on his neck. He found that when Jadaba tried to ward off the blows, he received injury on his hand. According to the informant, other accused persons were standing nearby and instigating Jogendra to assault Jadaba. Seeing the informant, all of them ran away. Thereafter, the informant took his brother in a bullock cart. On being asked Jadaba told him that Jogendra assaulted him by means of ''Tabal Tangia" while he was returning from the house of his younger brother. He further stated before the informant that Jogendra had dealt two blows using the cutting edge of "Tabal Tangia" on his neck. Unfortunately before the bullock cart could reach the hospital, he succumbed to the injuries. 3. On the basis of the information received, O.I.C., Khaira Police Station registered a police case, took up investigation, seized the relevant materials, conducted inquest, sent the dead body for post mortem and arrested the accused persons. One of the accused persons being minor, he was sent to the Juvenile court. After completion of investigation, charge-sheet was submitted only against the present Appellant. Learned S.D.J.M. after taking cognizance committed the case for trial. 4. In course of trial, learned Sessions Judge on coming to the conclusion that allegations have been levelled also against other accused persons, exercising the power u/s 319, Code of Criminal Procedure, added them as accused persons. 5. After completion of investigation, charge-sheet was submitted only against the present Appellant. Learned S.D.J.M. after taking cognizance committed the case for trial. 4. In course of trial, learned Sessions Judge on coming to the conclusion that allegations have been levelled also against other accused persons, exercising the power u/s 319, Code of Criminal Procedure, added them as accused persons. 5. The plea of the defence was of complete denial. 6. The prosecution in order to substantiate their case got examined 12 witnesses and exhibited several documents apart from the M. Os. 7. The trial court after discussing the evidence in extenso, while acquitting the other accused persons, due to paucity of evidence held that the prosecution was able to prove the guilt of Jogendra beyond all reasonable doubts and convicted him u/s 302, Indian Penal Code. 8. Mr. Sahoo, Learned Counsel for the Appellant assailing the order of conviction submitted that the trial court after acquitting the other accused persons acted illegally and with material irregularity in convicting the Appellant on the basis of the same set of evidence and it is a fit case where benefit of doubt tilts in favour of the Appellant and he may be acquitted. 9. Learned Counsel for the State, on the other hand, submitted that learned Sessions Judge has taken pain to analyse the evidence threadbare and the conclusions arrived at are just and proper. According to Learned Counsel for the State, even if a different view is possible, this Court should refrain from taking such a view unless the view taken appears to be perverse or contrary to evidence. In short, according to learned Addl. Govt. Advocate, the order of conviction being just and proper, needs no interference. 10. Heard Learned Counsel for the parties at length. Perused the evidence. In the instant case, the prosecution mainly relies upon the evidence of P.W. 1, who is the informant and brother of the deceased and also brother of the accused as well as P.W. 2, who is a eye witness to the occurrence. Before analyzing the evidence, it would be apt to mention that P.W. 1, accused (Jogendra), deceased (Jadaba) and Ganga are four brothers. They had some dispute with regard to landed properties. Accused Jogendra, one of the brothers, had picked up disputes with other brothers and was not pulling on well. He was annoyed on Jadaba and had grudge upon him. Before analyzing the evidence, it would be apt to mention that P.W. 1, accused (Jogendra), deceased (Jadaba) and Ganga are four brothers. They had some dispute with regard to landed properties. Accused Jogendra, one of the brothers, had picked up disputes with other brothers and was not pulling on well. He was annoyed on Jadaba and had grudge upon him. 11. Perusal of the evidence of P. Ws.1 and 2 leads no doubt that accused-appellant inflicted injuries on Jadaba by means of "Tabal Tangia", Perusal of the post mortem report as well as doctor's evidence leads to a conclusion that the death of Jadaba was homicidal in nature. this Court is also satisfied and agreed with the findings of the learned Sessions Judge that the Appellant was the author of such injuries. According to Mr. Sahoo, the accused has remained in custody for last 17 years. There is no dispute that the deceased was the brother of the Appellant and ill-feeling existed between them. That apart, there are materials to reveal that the Appellant had a grudge upon the deceased. According to the Learned Counsel for the Appellant, on the given date in the morning when the accused Appellant found his brother Jadaba taking a yoke on his shoulder, he became furious and could not control his emotion and out of sudden provocation without realizing the consequence, he gave two blows with "Tabal Tangia" on his brother. He has already undergone rigorous imprisonment for seventeen years. 12. Considering the entirety of the evidence, this Court feels that the assault on the deceased was not a pre-meditated one, but had occasioned due to sudden loss of anger, it is a fit case where the conviction u/s 302, Indian Penal Code requires to be converted to one u/s 304, Part-II, Indian Penal Code. 13. In view of the discussions made above, the appeal is allowed in part, the impugned judgment convicting the Appellants u/s 302/34, Indian Penal Code is set aside and he is convicted for the offence u/s 304, Part-II/34, I.P.C and is sentenced to imprisonment for the period already undergone. If the Appellant is in custody, he may be set at liberty forthwith, unless his detention is required in any other case. S.C. Parija, J. 14. I agree. Final Result : Allowed