JUDGMENT : S.C. Parija, J. - These two appeals are directed against the judgment dated 26.04.1999, passed by the Additional Sessions Judge, Jagatsinghpur, in S.T. Case No. 321 of 1998, holding the accused persons-appellants guilty of offences under Sections 302/34 Indian Penal Code and convicting them there under. 2. The brief facts common to both the appeals are that on 05.05.1996 at about 1.30 P.M., deceased Bharat Sethy along with Babuna Lenka and Nanda Mallick had gone to Machhagaon canal to take bath. While deceased Bharat Sethy was catching fish and the other two were taking bath, they heard hulla and found that the accused persons Kandura @ Sudarsan Bhoi and Chakradhar Muduli were running towards them. Accused Chakradhar Muduli was holding a bhujali in his hand. It was alleged that accused Kandura Bhoi caught hold of deceased Bharat Sethy and accused Chakrdahar Muduli dealt a bhujali blow on the left side abdomen of deceased Bharat Sethy, causing bleeding injuries and both the accused persons thereafter fled away from the spot. Deceased Bharat Sethy sustained severe bleeding injuries on the left side of his abdomen and fell down and died at the spot. Babuna Lenka took him to the Biridi P.H.C. On hearing the incident, father of deceased Bharat Sethy lodged FIR before the OIC, Biridi Out Post, on receipt of which, a case under Sections 302/34 Indian Penal Code was registered against the accused persons and investigation was taken up. During investigation, the La. (P.W.10) examined the informant, visited the spot, seized some blood stained sand, chapel etc. and prepared the seizure list. He also seized blood stained gauge lying in the varendah of the hospital near the dead body of deceased Bharat. The I.O. held inquest oyer the dead body in presence of witnesses and despatched the dead body for post-mortem examination. Subsequently, the investigation was taken up by P.W.12, who sent the blood stained cloth etc. to State F.S.L., Rasulgarh for chemical examination. He arrested the accused Chakradhar and seized one bhujali from him and prepared the seizure list. He sent the bhujali to the doctor to give an opinion as to whether the injuries present on the body of deceased Bharat can be possible by the seized bhujali. to State F.S.L., Rasulgarh for chemical examination. He arrested the accused Chakradhar and seized one bhujali from him and prepared the seizure list. He sent the bhujali to the doctor to give an opinion as to whether the injuries present on the body of deceased Bharat can be possible by the seized bhujali. Subsequently, he handed over the charge of the investigation to P.W.11, who on completion of the investigation, submitted charge sheet against the accused persons under Sections 302/34 Indian Penal Code. 3. The plea of the accused persons was that of complete denial and that they have been falsely implicated in the case due to their previous enmity with the informant. 4. The prosecution, in order to prove the charges against the accused persons, examined 12 witnesses. P.W.3 is the informant, who is the father of deceased Bharat Sethy. P. Ws 1, 5 and 8 are the eye witnesses to the occurrence. P.W.2 is a witness to the seizure of bhujali by the police from the possession of accused Chakradhar Muduli. P.W.4 is a witness to the seizure of some articles made by the police and before whom the inquest over the dead body was held by the police. P.W.6 is the doctor of Biridi P.H.C. and witness to the inquest held over the dead body of the deceased. P.W.7 is the doctor, who conducted the post-mortem examination over the dead body of the deceased. P.W.9 is a post occurrence witness, who intimated the informant (P.W.3) about the death of his son Bharat. P. Ws. 10 to 12 are the investigating officers in the case. 5. The Doctor (P.W.7), who conducted the post mortem examination over the dead body of the deceased Bharat Sethy, stated in his evidence that the deceased Bharat had one stab injury on the left side of his abdomen and opined that the cause of death of Bharat was due to stab injury to vital visceras and blood vessels of abdomen, leading to profuse haemorrhage and shock. He opined that the injuries were ante? mortem in nature and the death of Bharat was homicidal. 6. He opined that the injuries were ante? mortem in nature and the death of Bharat was homicidal. 6. P.W.8, who is stated to be an eye witness to the occurrence, had stated in his evidence that he had seen the accused Chakdradhar Muduli creating some disturbance in the Biridi Hat at about 12.30 P.M. and when the general public protested and chased him, he fled away being followed by the public. He further stated that while accused Chakradhar was going towards the canal embankment, he saw from a distance that the accused gave a bhujali blow on the abdomen of deceased Bharat and fled away towards the river side and thereafter he along with Nanda Mallick (P.W.1) with the help of a cycle removed the deceased Bharat to Biridi hospital and before they arrived at the hospital, Bharat was found dead. 7. P.W.1 in his evidence had stated that at the time of the occurrence he along with Babuna Lenka were taking bath in the Machhagaon canal and on the other side of the canal, deceased Bharat was catching fish. On hearing hulla, he came to the canal embankment and saw accused Kandura Bhoi and Chakradhar Muduli running towards them. At that time, while accused Chakradhar Muduli and Kandura Bhoi were near the wooden bridge, seeing Bharat on the way, they thrust a bhujali blow on the lower abdomen (left side), as a result of which Bharat fell down on the ground and the accused persons fled away to the river side. Thereafter he along with Babuna Lenka shifted Bharat to Biridi P.H.C., where he was found dead. In his cross-examination, P.W.1 stated that Babuna Lenka was taking bath with him and when the accused persons Chakradhar and Kandura came to the spot, at that time, Babuna Lenka fled away and he never came back to the spot. 8. P.W.5, who was stated to be an eye witness to the occurrence, did not support the case of the prosecution and was declared hostile. P.W.3 is the father of deceased Bharat, who learnt about the incident from Surendra Sethy (P.W.9), rushed to Biridi PHC, where he saw his son Bharat was lying with severe injuries on his abdomen. He learnt from P.W.1 that accused Chakradhar dealt a bhujali blow to the belly of his son and accused Kandura Bhoi assisted him. P.W.3 is the father of deceased Bharat, who learnt about the incident from Surendra Sethy (P.W.9), rushed to Biridi PHC, where he saw his son Bharat was lying with severe injuries on his abdomen. He learnt from P.W.1 that accused Chakradhar dealt a bhujali blow to the belly of his son and accused Kandura Bhoi assisted him. P.W.3 further stated that his son Bharat was working in the house of Dhira Behera, with whom accused Chakradhar was not pulling on well. P.W. 3 further stated that he lodged the FIR (Ext. 2) before the OIC, Biridi Out Post against the accused persons. 9. Learned Additional Sessions Judge, on the basis of the evidence on record, came to find that there was material to show that accused Chakradhar and Kandura were not pulling on well with Dhira Behera prior to the occurrence and that on the date of occurrence, the accused persons had gone to Biridi Hat to assault Dhira Behera and in his absence they attacked the cabin of Dhira Behera. Further, as per the evidence of P.W.3, deceased Bharat used to move with Dhira Behera. Accordingly, learned Additional Sessions Judge found that the accused persons had gone to Biridi Hat with the sole purpose to assault Dhira Behera and caused disturbance in the market and when the public of Biridi protested, the accused persons fled away out of fear and ran towards the embankment side of Machhagaon canal. Deceased Bharat was catching fish in Machhagaon canal and hearing hulla he came towards the embankment and at that time when the accused persons saw deceased Bharat on the embankment of the canal, accused Kandura caught hold of Bharat and accused Chakradhar dealt a bhujali blow on his belly, as a result of which deceased Bharat sustained bleeding injuries on his abdomen, as a result of which, he fell on the ground and died. Accordingly, learned Sessions Judge, came to find that the accused persons were responsible for the death of deceased Bharat. 10. Accordingly, learned Sessions Judge, came to find that the accused persons were responsible for the death of deceased Bharat. 10. Coming to the question of recovery of bhujali from the possession of accused Chakradhar by the I.O.(P.W.12), though the said bhujali was not produced in the Court at the time of trial, learned Sessions Judge, on the basis of the evidence of the I.O.(P.W.12) and the evidence of P.W.2, who was a witness to the seizure of bhujali, came to hold that non-production of weapon of offence (bhujali) is not a ground to disbelieve that no weapon of offence was recovered from the possession of the accused and that such non-production of bhujali is not fatal to the case of the prosecution. 11. As regard the intention of the accused persons to commit the crime, learned Additional Sessions Judge, on the basis of the evidence of P. Ws. 1,8,11 and 12, came to hold that the accused persons shared common intention to commit the crime. Further, as the accused Chakradhar thrust a bhujali blow into the abdomen of deceased Bharat, which resulted in his death at the spot and the post-mortem report (Ext.5) revealed that the cause of death was due to injury to the vital organ of deceased Bharat, the accused persons had the intention to cause death of deceased Bharat. Accordingly, learned Additional Sessions Judge proceeded to hold the accused persons guilty of offence u/s 302/34 Indian Penal Code and convicted them there under. 12. Learned Counsel for the Appellants in both the appeals have taken the common plea that there being no material on record to even suggest that there was any pre-meditation or pre-planning by the accused persons to commit the murder of deceased Bharat and no strong motive or any intention having been attributed to the accused persons, for committing the murder, learned Additional Sessions Judge erred in convicting the accused persons under Sections 302/34 Indian Penal Code. It is further submitted that as no overt act had been attributed to accused Kandura and even otherwise the evidence of P. Ws.1 and 8 being not free from contradictions and inconsistencies, the impugned conviction cannot be sustained. It is further submitted that as no overt act had been attributed to accused Kandura and even otherwise the evidence of P. Ws.1 and 8 being not free from contradictions and inconsistencies, the impugned conviction cannot be sustained. It is forcefully submitted that as the murder of deceased Bharat, as per the consistent evidence of the witnesses was not on the basis of any prior planning and was at the spur of the moment while being chased by the public of Biridi and admittedly only one bhujali blow had been dealt by accused Chakrdhar, at best, it would be a case u/s 304 Part-II Indian Penal Code. In this regard, reliance has been placed by the learned Counsel for the accused persons on a Division Bench decision of this Court in the case of Purna Chandra Naik v. State of Orissa, 1995 (3) Crimes 480. It is further submitted that both the accused persons are in custody for about 12 years. 13. On an analysis of the evidence on record, we find that the statements of eye witnesses like P. Ws. 1 and 8 clearly goes to show that while the public of Biridi were chasing the accused persons they ran towards the river embankment, where on seeing deceased Bharat, accused Kandura caught hold of him and accused Chakradhar dealt a bhujali blow to his belly. The consistent evidence of all the witnesses is that the act of dealing a bhujali blow by accused Chakradhar to the belly of deceased Bharat was on the spur of the moment. Considering the fact that no strong motive or any intention having been attributed to the accused persons for committing the murder of deceased Bharat and in absence of any pre-meditation, we feel the interest of justice would be best served, if the conviction of the accused persons (in both the appeals) under Sections 302/34 Indian Penal Code is set aside and the same is modified to one u/s 304 Part-II/34 Indian Penal Code. 14. The accused Chakradhar Muduli (appellant in Criminal Appeal No. 137 of 1999) and accused Kandura @ Sudarsan Bhoi (appellant in Criminal Appeal No. 187 of 1999) are accordingly convicted u/s 304 Part-II/34 Indian Penal Code and sentenced to undergo imprisonment for the period already undergone. 15. Both the Criminal Appeals are accordingly disposed of. A.S. Naidu, J. 16. I agree. 17. Appeal disposed of.