JUDGMENT : S.C. Parija, J. - This appeal by the accused-Appellant is directed against the judgment dated 28.10.2002 passed by the Adhoc Addl. Sessions Judge, Jeypore, in Criminal Trial No. 14 of 2002, holding the accused guilty of offence u/s 302 Indian Penal Code & convicting him thereunder. 2. The case of the prosecution, in brief, is that, on 31.01.2000 at about 4 P.M., the deceased Madhaba & Dhana (P.W.1) were sitting near the canal of the village Salpiaguda. At that time the accused came from the back side being armed with a broken portion of a ladder & at first dealt one blow on the back side neck of the deceased, as a result of which, the deceased fell down on the ground. Thereafter the accused dealt three to four blows on the head of the deceased causing severe bleeding injuries. Seeing the assault on the deceased, Dhana (P.W.l) raised hulla, as a result of which, P.W. 2, who is the brother of the deceased & P.W. 6 Raghu Pujari and Ors. rushed to the spot, while the accused was still assaulting the deceased. P.W. 2 snatched away the broken ladder from the hands of the accused. The victim was shifted to his house but soon after he succumbed to his injuries. The son of the deceased & P.W. 6 went to the Jeypore Sadar Police Station & lodged oral report at about 10 P.M. in the same night which was reduced to writing by the police & registered as an F.I.R. After investigation was completed, the police filed charge sheet against the accused u/s 302 Indian Penal Code. 3. The plea of the accused-Appellant was one of complete denial. However during trial, the defence took the plea of insanity of the accused. 4. The prosecution in order to substantiate the charge examined 8 witnesses, out of which, P. Ws.1, 2 & 6 were eye-witnesses to the incident. P.W. 3 is the son of the deceased, who reached the spot soon after the incident & is also the informant & witness to the inquest. P.W. 4 is the seizure witness. P.W. 5 reached the spot soon after the incident & P.W. 7 is the doctor who conducted the post mortem examination. P.W. 3 is the son of the deceased, who reached the spot soon after the incident & is also the informant & witness to the inquest. P.W. 4 is the seizure witness. P.W. 5 reached the spot soon after the incident & P.W. 7 is the doctor who conducted the post mortem examination. P.W. 8 is the I.O. The defence examined two witnesses, out of whom, D.W.1 is the son of the accused & D.W.2 is an independent witness & both the witnesses tried to prove the plea of insanity of the accused. 5. The testimony of P.W. 1 reveals that he along with Madhaba (deceased) were sitting near the canal & at that time the accused Gupta Amantaya came from behind & dealt a blow on the back side neck of the deceased by means of a broken piece of a ladder, as a result of which, the deceased took few steps forward & fell down on the ground. Thereafter the accused dealt four blows on his head by means of said broken ladder. The deceased sustained severe bleeding injuries on his head. P.W. 1 further stated that he raised hue & cry & hearing the same, P.W. 2 & thereafter P.W. 6 came running to the spot. P.W. 2, who is the brother of the deceased, intervened & caught hold of the broken piece of ladder & snatched it away from the accused. Thereafter the deceased was shifted to his house where he succumbed to his injuries. P.W. 1 identified the piece of wooden ladder (M.O.I) by which the accused had assaulted the deceased. 6. P.W. 2 corroborated the testimony of P.W. 1. According to P.W. 2, on that day at about 4 P.M., he along with P.W. 6 while returning from the weekly market, on the way, he saw P.W. 1 & the deceased sitting near the canal. His house is at a distance of about 100 cubits from that place. After some time, he heard hulla of P.W. 1 & he rushed to the spot & found the accused assaulting the deceased by a piece of broken ladder. At that time, the deceased was lying at a distance of 10 to 12 cubits away from the spot, where he was sitting earlier. After some time, he heard hulla of P.W. 1 & he rushed to the spot & found the accused assaulting the deceased by a piece of broken ladder. At that time, the deceased was lying at a distance of 10 to 12 cubits away from the spot, where he was sitting earlier. According to P.W. 2, when he tried to save his brother, the accused dealt one blow on his head, but he was able to snatch away the wooden plank (piece of broken ladder). P.W. 2 further stated that due to the assault, the deceased sustained bleeding injuries on his head & blood was oozing from his ear & nose. The evidence of P.W. 2 further reveals that the accused had run away from the spot, after assaulting the deceased. 7. P.W. 6 who is also an eye-witness, who has completely corroborated the testimony of P.W. 2 & no contradiction could be elicited during cross examination. P.W. 3, who is the son of the deceased, came to the spot after the incident while the deceased was being shifted by P. Ws. 2 & 6 and Ors. to his house. He found bleeding injuries on his deceased father & also noticed that blood was oozing out of his ears. P.W. 3 along with P.W. 6 went to Jeypore Sadar Police Station & lodged oral report which was reduced to writing by the police & he had signed the same along with P.W. 6. The I.O. held inquest over the dead body of his father in his presence & he along with a police Constable carried the dead body to Jeypore Hospital for post mortem. 8. P.W. 4 is a witness to the seizure of blood-stained earth & sample earth from the spot & is also a witness to the inquest made over the dead body. P.W. 5 had reached the spot soon after the incident & found injuries on the deceased. 9. P.W. 7 is the doctor who conducted post mortem examination over the dead body of the deceased & found the following injuries: 1) Lacerated injury over right upper eye lid of size 1" x 1/4" X 1/4" 2) Abrasion over left shoulder of size 1" x 1/4". 3) Abrasion over right knee of size 1/2" x 1/2". 4) Lacerated injury over occipital region to the left side of size 1" x 1/4'' X 1/4". 3) Abrasion over right knee of size 1/2" x 1/2". 4) Lacerated injury over occipital region to the left side of size 1" x 1/4'' X 1/4". 5) Depressed fracture over occipital region of skull of size 2" x 2" which affected both the table & corresponding to injury No. 4. 6) Lacerated injury over left parietal region of size 2" x 1/2" X 1/4". 7) Brain haemorrhage of about 50 M.L. 8) Rupture of spleen anteriorily of size 1" x 1/4" X 1/4''. 9) Heart was found empty in both the sides. 10. According to the doctor (P.W.7) injuries 1 to 8 were ante mortem in nature. He opined that the death was due to shock on account of excessive bleeding. He stated that injuries 5, 7 & 8 are internal injuries & the rest are external & that the internal injuries were grievous in nature & can cause death in the ordinary course of nature. P.W. 7 also opined that the injuries described by him can be possible by the broken piece of ladder (M.O.I). 11. The defence examined the son of the accused (D.W. 1) who stated that his father was behaving like a insane person three months prior to the alleged incident & that he had been treated by herbal medicines. During cross examination, D.W.1 stated that on the alleged date of incident he had gone to the weekly market & was absent at the time of the incident. According to D.W.1 the village priest had told him that his father is mad. D.W.1 further admitted that at times his father was behaving normally & at times as a mad person. D.W.2 stated that the accused was behaving like a mad person but during cross examination, he admitted that he has not met the accused 8 days prior to the incident. He further admitted that the accused had never behaved violently before him & that he was behaving properly. 12. The defence relied on the testimony of P.W. 4 who had stated that he had heard that the accused had become mad. P.W. 4 had further stated in his evidence that he had found the accused on two to three occasion behaving in odd manner & from that he could guess that the accused had become mad. 12. The defence relied on the testimony of P.W. 4 who had stated that he had heard that the accused had become mad. P.W. 4 had further stated in his evidence that he had found the accused on two to three occasion behaving in odd manner & from that he could guess that the accused had become mad. The defence had further taken the plea that there was no motive or any intention on the part of the accused to assault & kill the deceased & admittedly there was no enemity or any ill feeling between the accused & the deceased. 13. Learned Sessions Judge on considering the evidence on record & especially the clear, cogent & consistent evidence of the P. Ws. 1, 2 & 6 who are eye-witnesses to the occurrence & the evidence of the doctor, came to hold that the accused was the author of the crime. With regard to the plea of insanity, Learned Sessions Judge disbelieved the evidence of D. Ws.1 & 2, especially when there was no medical evidence to establish that the accused was insane or of unsound mind. Accordingly Learned Sessions Judge came to hold that the accused had assaulted the deceased with the intention of causing death & accordingly held in guilty u/s 302 Indian Penal Code & convicted him thereunder. 14. On a perusal of the evidence of the P. Ws.1, 2 & 6, who are eye-witnesses to the occurrence, the same clearly reveals that the accused had assaulted the deceased by means of a broken piece of ladder (M.O.I), as a result of which, the deceased died soon after. The evidence of the doctor (P.W.7) clearly shows the grievous injuries sustained by the deceased, who died due to shock & excessive bleeding. There is no material contradiction to disbelieve the evidence of the eye-witnesses & there being no medical evidence to substantiate the plea of insanity, the findings of Learned Sessions Judge cannot be faulted. 15. Coming to the question of motive, it is seen that apparently there was no enemity or even any ill-feeling between the accused & the deceased. The prosecution has also not been able to establish any possible reason for the accused to have assaulted the deceased. 15. Coming to the question of motive, it is seen that apparently there was no enemity or even any ill-feeling between the accused & the deceased. The prosecution has also not been able to establish any possible reason for the accused to have assaulted the deceased. In absence of any intention & pre-meditation on the part of the accused to commit the murder of the deceased & keeping in view the fact that the accused is in custody for about 9 years, we feel, the interest of justice would be best served if the order of conviction of the accused-Appellant u/s 302 Indian Penal Code is modified to one u/s 304 Part II Indian Penal Code. The accused-Appellant is accordingly convicted u/s 304 Part II Indian Penal Code & is sentenced to the period of imprisonment already undergone by him. The accused Appellant be released forthwith, if his detention is not required in any other case. 16. The JCRLA is accordingly allowed to the extent indicated above. A.S. Naidu, J. 17. I agree. Final Result : Allowed