JUDGMENT : A.S. Naidu, J. - Appellant & Dandapani Naik faced trial for commission of offence u/s 302 r/w Section 34, IPC & their father accused Prafulla Naik faced trial for commission of offence u/s 302, read with Section 149, IPC for intentionally causing the death of Bidesi Naik in futherance of their common intention in S.T. Case No. 223/39/332 of 1995/92 of the Court of Learned Addl. Sessions Judge, Khurda. The Trial Court convicted the Appellant (Chakrapani) u/s 302, IPC & sentenced him to undergo R.I. for life. Dandapani (accused) was found guilty of the offence u/s 324, IPC & was convicted to undergo R.I. for a period of one year. However, Learned Addl. Sessions Judge came to the conclusion that the prosecution has totally failed to substantiate their case against accused Prafulla & acquitted him. The order of conviction & sentence passed against Dandapani has not been assailed & has attained its finality. The present appeal is thus confined only to the order of conviction & sentence passed against Chakrapani. 2. The prosecution was set to motion on the basis of an oral report made by Subarna Bewa (P.W.4) wife of Late Uchhaba Naik at Banpur Police Station at 10.30 A.M. on 19.7.1991. It was alleged that on the said date at about 7.00 A.M. her adopted son Bidesi Naik was carrying on cultivation operation over the land commonly known as "Chakuli Gahir" of Gadadharpur village. At about 8.00 A.M. she along with Sashi Sahu brought food for Bidesi, Bidesi came out of the field, took food & again entered into the field for the purpose of ploughing. At the relevant time, it is alleged, Chakrapani & Dandapani, the two accused were uprooting paddy seedlings from a piece of land near to "Chakuli Gahir". The informant & Sashi engaged themselves in uprooting the paddy seedlings in another land situated nearby. As there was ill-feeling in between the informant's family & the family of Prafulla Naik, P.W. 4 & Sashi apprehending disturbance kept a watch on Bidesi. At about 9.00 A.M. all of a sudden Chakrapani entered into the field where Bidesi was ploughing & inflicted a blow on his neck with a long handled spade (Thia Kodi). On receiving the assault, Bidesi cried aloud & fell down. Thereafter, it is alleged, Dandapahi inflicted 2 blows by means of 'Kati'. At about 9.00 A.M. all of a sudden Chakrapani entered into the field where Bidesi was ploughing & inflicted a blow on his neck with a long handled spade (Thia Kodi). On receiving the assault, Bidesi cried aloud & fell down. Thereafter, it is alleged, Dandapahi inflicted 2 blows by means of 'Kati'. The informant (RW 4) seeing the said occurrence shouted & called for help. Hearing his shouts, Puni Dei (not examined), Sarat Naik (P.W.6), Sanatan Behera (P.W.3), Bauribandhu Pradhan (P.W.2) & ors, who were working in the nearby paddy fields, came rushing to the spot. Seeing them, Dandapani & Chakrapani ran away from the spot. The informant, thereafter, came to the spot & found Bidesi lying in an unconscious state with his face downwards. With the help of Sarat Naik & Sanatan Naik, Bidesi was lifted from the spot & was carried to Banpur Hospital in a bus. The Medical Officer, Banpur however declared him dead. 3. On the basis of said oral report, which disclosed commission of a cognizable offence, P.W.14, the O.I.C. of Banpur Police Station registered Rs. Case No. 97 of 1992, took up investigation, drew formal F.I.R (Ext.5) conducted inquest, sent the body for post mortem, completed other paraphernalia & handed over the investigation to P.W. 15, who completed the investigation & submitted charge-sheet against three persons in the Court of Learned J.M.F.C, Banpur in G.R. Case No. 169 of 1991. Learned J.M.F.C. on being prima facie satisfied, took cognizance of the offence & committed the case to the Court of Session for trial. The plea of the accused Chakrapani was one of right of private defence. According to the statement made by him during examination u/s 313, Cr.P.C., the paddy field where the occurrence alleged to have taken place, though situated in "Chakuli Gahir", belonged to his family. They were in possession of the lands & had carried cultivation operation thereon. Bidesi, who had no semblance of right, title & interest or possession over the said land, trespassed & started cultivating the same. On being questioned, hot discussion cropped up between him & Bidesi. It is further alleged, Bidesi was armed with a Katari & he dealt a blow with the same on his legs & also tried to assault him further. To save him, Chakrapani swirled the "Thia Kodi", which came in contact with Bidesi & he fell down. On being questioned, hot discussion cropped up between him & Bidesi. It is further alleged, Bidesi was armed with a Katari & he dealt a blow with the same on his legs & also tried to assault him further. To save him, Chakrapani swirled the "Thia Kodi", which came in contact with Bidesi & he fell down. The further plea of the accused Chakrapani was that Dandapani had never assaulted the deceased in any manner. It is stated that he was removed to Banpur Government Hospital as his right leg was fractured. 4. In me statement made u/s 313, Cr.P.C., Dandapani took the stand that in fact he had never assaulted Bidesi & the statement made by Chakrapani was correct. 5. In order to (sic) their case, the prosecution got examined 15 witnesses including the two I.Os. & one medical officer, who conducted the post mortem. The port mortem report & other documents were exhibited so also the material objects. 6. After discussing the evidence in extenso & also examining the plea taken by the defence, Learned Addl. Sessions Judge, Khurda came to the conclusion that the defence had fallen far short of from successfully claiming the exception of right of private defence & negatived the said plea. On a cumulative assessment of the entire evidence, Learned Addl. Sessions Judge found accused Prafulla Naik not guilty of the offence & acquitted him. On the other hand, accused Chakrapani & Dandapani were found guilty of the offence u/s 302 & 324, IPC respectively & were convicted thereunder. 7. Mr. D.P. Dhal, Learned Counsel appearing for the Appellant meticulously took this Court through the evidence of all the witnesses & submitted that the Trial Court has not pragmatically appreciated the evidence & the conclusions arrived at cannot be sustained. According to Mr. Dhal, enough materials were available on record to reveal that the lands on which Bidesi was carrying on agricultural operation, were in possession of the accused & without any rhyme & reason Bidesi forcibly entered into the field & carried cultivation operation. On being questioned, he assaulted Chakrapani with a kati on his legs, which caused a fracture injury. Only on retaliation, Chakrapani in order to save his life, swirled the "Thia Kodi", which accidentally hit Bidesi. Thus, the Trial Court acted illegally in coming to the conclusion that right of private defence was not available to the Appellant. Mr. On being questioned, he assaulted Chakrapani with a kati on his legs, which caused a fracture injury. Only on retaliation, Chakrapani in order to save his life, swirled the "Thia Kodi", which accidentally hit Bidesi. Thus, the Trial Court acted illegally in coming to the conclusion that right of private defence was not available to the Appellant. Mr. Dhal further submitted that the Trial Court illegally did not take into consideration the very important fact that the Appellant had sustained grievous injury & the prosecution has totally failed to explain as to how the said injury was caused, thus giving an impression that the prosecution had not come to the Court with clean hands. Relying upon the post mortem report, Mr.Dhal further submitted that the cause of death being asphyxia due to strangulation, & as no witness has deposed about, inflicting such an injury on Bidesi, Learned Addl. Sessions Judge should have extended the benefit of doubt & acquitted the Appellant. In short, according to Mr.Dhal, the Court below has hot properly appreciated the evidence on record & the conclusions arrived at are based on surmises & needs to be varied. 8. All these submissions are strongly repudiated by Learned Counsel for the State. It is submitted that Learned Addl. Sessions Judge has meticulously discussed the evidence both oral & documentary & the conclusions arrived at are just & proper & in consonance with the evidence adduced. According to the Learned Counsel, enough evidence is available to establish that on the date of occurrence, the Appellant gave a blow on the neck of Bidesi by "Thia Kodi", consequently he tell down on the ground. The evidence of the eye witnesses also reveal that thereafter the Appellant pressed the neck of Bidesi thereby causing his death by throttling. 9. Alter hearing Learned Counsel for the parties at length & after going through the evidence meticulously, this Court finds that in fact there are some controversies with regard to the title of the land over which the occurrence took place. According to the informant (P.W.4), the land belongs to their family whereas according to the Appellant, as would be evident from the statement recorded u/s 313, Cr.P.C., the same belongs to them & they were in cultivating possession. Be that as it may, fact remains, Bidesi was ploughing the said land when the accused came to the spot. According to the informant (P.W.4), the land belongs to their family whereas according to the Appellant, as would be evident from the statement recorded u/s 313, Cr.P.C., the same belongs to them & they were in cultivating possession. Be that as it may, fact remains, Bidesi was ploughing the said land when the accused came to the spot. There is also enough evidence to reveal that altercation cropped up between the two leading to the assault. A scrutiny of the evidence of the doctor, P.W.13, who conducted autopsy & the post mortem report, unerringly reveal that the death was homicidal in nature. Thus, the only thing, which needs to be determined, is as to who was responsible for causing the death of Bidesi. The prosecution in order to establish their case fetied upon both direct & circumstantial evidence. Perusal of the entire evidence reveals that the same is confined only against Chakrapani & Dandapani. In other words, there is no iota of evidence either oral or documentary against the accused Prafulla Naik. The Trial Court has, therefore, rightly acquitted him. The order of acquittal having not been assailed has attained finality. So far as Dandapani is concerned, the Trial Court after discussing the evidence found him guilty of the offence u/s 324, IPC & sentenced him thereunder. The said finding has also been accepted as the order of conviction & sentence has not been assailed by Dandapani. Thus, this appeal is confined only to Chakrapani. 10.The prosecution has relied upon the oral evidence of P.Ws.1 to 6, who were occurrence witnesses. Out of the witnesses, P.Ws.1 & 2 have not supported the prosecution case & they were declared hostile. P.W.3 is an occurrence witness, He had seen the accused persons assaulting Bidesi niter going through the evidence of P.W.3, it appears that he arrived at the spot just after the occurrence. He had seen Bidesi lying on the field & accused Chakrapani also lying nearby. In fact, he has not seen the occurrence. P.W.4 is the mother of Bidesi (deceased). She was present at the spot when the occurrence took place. She had given a vivid description of the entire event. According to her, Chakrapani came near Bidesi & all of a sudden dealt a blow by a spade on the backside of her son. Consequently, he fell down on the ground & accused Chakrapani pressed him into the ground. She was present at the spot when the occurrence took place. She had given a vivid description of the entire event. According to her, Chakrapani came near Bidesi & all of a sudden dealt a blow by a spade on the backside of her son. Consequently, he fell down on the ground & accused Chakrapani pressed him into the ground. 11. P.W.5 is another eye witness. He has clearly stated that after receiving the blow, Bidesi fell down on the ground & accused Chakrapani thereafter pressed him to the ground. P.W.6 corroborates the said statement. He has also deposed that after receiving the blow, Bidesi fell down & thereafter, accused Chakrapani pressed him to the ground. It further appears that six inches of water, was stagnant on the field. 12. The evidence of the doctor (P.W.13), who conducted the post mortem reveals that the deceased sustained as many as 8 injuries. Out of the fame, injury No, (i) the face was swollen & bloody froth was seen around the left angle of the mouth, but then the same cannot be nomenclatured as an injury. Out of the external injuries, Injury No. (iii), i.e. "Bruise 5 cm. x 2 cm. over the front of the neck over the wind pipe" is very pertinent. On dissection, the doctor found that subcutaneous tissue over the trachea was deeply congested with extra vacation of blood. The larynx & trachea were congested & contained frothymucus. The cause of death according to the doctor P.W.13 was asphyxia due to strangulation. 13. The evidence of P.W.13 thus clearly supports the prosecution case to the effect that after Bidesi fell down on the ground on receiving the blow given by Chakrapani on his neck, the latter pressed his face on the field, which was containing six inches of water. A cumulative reading of the entire evidence leads to the irresistible conclusion that the death was caused due to the overt-act committed by the Appellant, who had not only given a blow by "Thia Kodi" on the neck of Bidesi, but also pressed him in the field containing water, thereby throttling him to death. Learned Addl. Sessions Judge has taken note of the entire evidence & thus, has not committed any error in arriving at the finding that Chakrapani was the author of the crime. That apart, the Judgment of the Learned Addl. Learned Addl. Sessions Judge has taken note of the entire evidence & thus, has not committed any error in arriving at the finding that Chakrapani was the author of the crime. That apart, the Judgment of the Learned Addl. Sessions Judge with regard to Dandapani having not been assailed, the findings have attained finality. Considering all these aspects & the facts & circumstances, we are not inclined to interfere with the conclusions arrived at by the Learned Addl. Sessions Judge. 14. However, this Court finds that dispute with regard to right, title & interest over the lands, where the occurrence took place inter se between the parties was pending for quite some time. The parties have also approached the Civil Courts. On the given date, Bidesi was admittedly carrying on cultivation operation on the disputed field when Chakrapani came & questioned him resulting in hot exchange of words leading to assault between the parties. It appears from the injury report & the evidence of the doctor that Chakrapani had also sustained fracture injury. Enough materials are available to leveal that Bidesi was the author of such injury caused to Chakrapani. Further, it reveals that Chakrapani had not gone to the field with the intention to murder Bidesi & the dispute ensued at the spur of the moment. Considering the said facts & as this Court is satisfied that the Appellant had no intention to murder Bidesi & the assault was not a pre-meditated one, & had occasioned at the spur of the moment, we find the order of conviction & sentence u/s 302, IPC would not be proper. 15. Accordingly, the appeal is allowed in part, the impugned Judgment convicting the Appellant u/s 302 I.P.C. is set aside & instead he is convicted for commission of offence u/s 304, Part-II I.P.C & sentenced to undergo rigorous imprisonment for a period of 8 years & to pay a fine of Rs. 2,000 (two thousand) & in default, to undergo rigorous imprisonment for a further period of 6 months, It is needless to say that the period of imprisonment already undergone would be treated as set off. S.C. Parija, J. I agree.