JUDGMENT : S.C. Parija, J. - This Criminal Appeal is directed against the judgment dated 15.09.1997, passed by the Sessions Judge, Sundargarh, in S.T. No. 184 of 1995, holding the Appellants-accused persons guilty of offences under Sections 302 read with Section 34 Indian Penal Code & convicting them thereunder. 2. The case of the prosecution, in brief, is that one of the buffaloes belonging to the accused persons died about 2 to 3 days prior to the date of the occurrence, i.e. 30.05.1995 & both the accused persons suspected that their buffalo died due to witchcraft practised by deceased Gobardhan Palai. The accused persons had blamed Gobardhan Palai, & asserted that he was responsible for the death of their buffalo & had threatened him. On 30.05.1995, deceased Gobardhan Palai, as usual returned to his house at about 4 P.M., after finishing his work in Kalta Mines & after taking bath in the canal he came to the house & changed his dress & went out to see as to whether his son Chaitan Palai had tied the buffaloes after bringing them from grazing. Being satisfied that the buffaloes were tied in their respective places, he returned to his house in the evening at about 6 P.M. At that time, his wife Sampati Palai was standing in the outer Court-yard. While Gobardhan Palai was returning & was about to reach his house, both the accused persons, namely, Gouranga Ghana & Maheswar Ghana, armed with lathis restrained Gobardhan in front of his Court-yard & challenged him as to why he had caused the death of their buffalo by practising witchcraft, to which Gobardhan denied. At this stage, accused Gouranga Ghana dealt two lathi blows on the head of Gobardhan Palai, as a result of which he fell down on the ground & seeing this, his wife Sampati Palai came to his rescue & Gouranga Ghana also dealt lathi blows on the right thigh of Sampati Palai, as a result of which she also fell down on the ground. Thereafter accused Maheswar Ghana dealt lathi blows on the head & other parts of the body of Gobardhan while he was lying on the ground. Both the accused persons after causing injuries on the head & other parts of the body of Gobardhan by means of lathi fled away from the place. Thereafter accused Maheswar Ghana dealt lathi blows on the head & other parts of the body of Gobardhan while he was lying on the ground. Both the accused persons after causing injuries on the head & other parts of the body of Gobardhan by means of lathi fled away from the place. Sampati Palai & her son Prafulla lifted Gobardhan from the place of assault & brought him to the house & immediately thereafter, he was taken in a vehicle to the hospital, where the doctor declared him dead. In the same night at about 8 P.M. Sampati Palai, wife of deceased Gobardhan Palai went to Kalta Out Post & orally reported the mater, which was reduced into writing by the Asst. S.I. of Police, Kalta Out Post & was entered in the Station Diary. A written report prepared on the basis of oral information given by Sampati. Palai was sent to Koida Police Station for registration of a case & the Asst.S.I. of Police, Kalta Out Post took up preliminary investigation. 3. The Asst. S.I. of Police, Kalta Out Post, examined Sampati Palai & issued requisition for her medical examination. On the same day at about 10 P.M., the O.I.C., Koida Police Station took charge of the investigation, visited the spot, sent requisition to the Scientific Officer, Rourkela, for spot visit, held inquest over the dead body & prepared the inquest report. The I.O. sent the dead body for post-mortem examination & seized one Kendu lathi stained with blood, sample earth & blood stained earth from the spot and Anr. lathi with fresh crack was also seized from the house of Gouranga Ghana. The wearing apparels of the deceased Gobardhan stained with blood were also seized & both the accused persons were arrested & forwarded to the Court in custody. The seized articles were sent to Regional Forensic Science Laboratory, Sambalpur for chemical examination & after completion of the investigation, charge sheet was submitted against both the accused persons under Sections 302/323 read with Section 34 Indian Penal Code. 4. The plea of the accused persons was one of complete denial & they pleaded that they have been falsely implicated in the case. 5. The prosecution, in order to establish the charges against the accused persons, examined as many as 14 witnesses. No witness was examined on behalf of the defence. 4. The plea of the accused persons was one of complete denial & they pleaded that they have been falsely implicated in the case. 5. The prosecution, in order to establish the charges against the accused persons, examined as many as 14 witnesses. No witness was examined on behalf of the defence. P.W. 1 is the doctor, who had conducted the post-mortem examination over the dead body of Gobardhan Palai. P.W. 2 is the doctor, who was working as Veterinary Asst. Surgeon at Koida, who knew the accused Gouranga Ghana, as he had brought his buffaloes for treatment to him. P.W. 3 Sampati Palai is the wife of deceased Gobardhan & she is an eye witness to the occurrence. P.W. 4, Prafulla Palai is the son of deceased Gobardhan. P.W. 5 Sabitri Palai is the daughter-in-law of deceased Gobardhan, who is a post occurrence witness & she found the injuries on the head of deceased Gobardhan. P.W. 6, Muralidhar Palai is a witness to the inquest & P.W. 7, Bipin Pingua is a witness to the seizure of two lathis. P.W. 8 is the police constable who had taken the dead body for post-mortem examination & P.W. 9, Ugrasena Palai is a witness to the inquest. P.W. 10, Pitabas Ghana & P.W. 11 Murli Barik denied to have any knowledge about the occurrence & were declared hostile. P.W. 12 is the Asst. S.I. of Police attached to Kalta Out Post, who made Station Diary entry on 30.05.1995 on recording the oral information about the occurrence as stated by Sampati Palai. P.W. 14 is the O.I.C. of Koida P.S., who initially took charge of the investigation of the case on 30.05.1995 & held inquest over the dead body of Gobardhan & sent the same for post-mortem examination & also made seizure of blood stained earth, lathis, wearing apparels of the deceased & wearing apparels of both the accused persons & other articles as per the seizure list. P.W. 13 is the O.I.C. of Koida P.S., who took charge of investigation from P.W. 14 on 08.08.1995 & during investigation he seized the Station Diary of Kalta Out Post & sent the seized articles for chemical examination & submitted the charge sheet against the accused persons. 6. P.W. 13 is the O.I.C. of Koida P.S., who took charge of investigation from P.W. 14 on 08.08.1995 & during investigation he seized the Station Diary of Kalta Out Post & sent the seized articles for chemical examination & submitted the charge sheet against the accused persons. 6. The doctor (P.W.1), who conducted post-mortem examination over the dead body of Gobardhan Palai found the following external injuries: (1) One lacerated wound on the left side of the occipital region of size 1" x 1" x scalp depth, (2) One lacerated wound on the left temporal region of size 1 1/2" x 1" x scalp depth. (3) One triangular lacerated wound on left side forehead of size 1 1/2" x 1 1/2" x 1" - breadth - 1/2" x 1" depth. A piece of bone has been protruding through the wound. On dissection, the doctor (P.W.1) found the following internal injuries: (1) Skull of frontal & temporal region were broken into 6 pieces. (2) Membrane was torn on the front & left temporal region. (3) Brain was smashed in left frontal region & three pieces of bone were piercing into it. 7. According to the doctor (P.W.1), the injuries were ante mortem in nature & the same were sufficient in the ordinary course of nature to cause death & the death of Gobardhan was homicidal in nature. P.W. 1, on examination of two lathis (M. Os.I & II) opined that the injuries found on the dead body of deceased Gobardhan could be caused by such lathis. 8. Sampati Palai (P.W.3), wife of deceased Gobardhan, is the only eye witness to the occurrence. From the evidence of P.W. 3. it revealed that the occurrence took place in front of her house, while her husband Gobardhan Palai was returning to the house & she had seen both the accused persons causing injuries on his person by giving lathi blows. P.W. 3 in her evidence disclosed that both the accused persons restrained her husband while he was returning to the house & made him responsible for the death of their buffalo, to which her husband denied. P.W. 3 further stated in her evidence, that both the accused persons assaulted her husband Gobardhan with lathis & caused injuries on his person. 9. P.W. 3 further stated in her evidence, that both the accused persons assaulted her husband Gobardhan with lathis & caused injuries on his person. 9. The defence took the plea that there being inconsistencies & discrepancies in the evidence of P.W. 3 & in absence of any independent corroboration, the same should not be accepted for recording an order of conviction. In this regard, it was pointed out that in the FIR, which was reduced into writing by P.W. 12, on the oral information of P.W. 3 it had been stated that first accused Gouranga dealt two lathi blows on the head of deceased Gobardhan, as a result of which he fell down on the ground & thereafter other accused Maheswar dealt lathi blows on the head & face of Gobardhan & both the accused persons caused injuries on Gobardhan by means of lathis. However, P.W. 3 in her evidence had only stated that both the accused persons assaulted her husband Gobardhan with lathis & caused injuries on his person. Accordingly, the defence pleaded that the sequence of events as narrated in the FIR does not tally with the oral evidence adduced by P.W. 3 in the Court. 10. Learned Sessions Judge, on a perusal of the evidence of P.W. 3 as deposed in the Court vis-a-vis in the FIR, came to find that though there were some discrepancies with regard to the sequence of events & the time of occurrence, the fact regarding assault by both the accused persons on Gobardhan Palai gets corroboration from the FIR (Ext.8). Further from the evidence of P.W. 12, the Asst.S.I. of Kalta Out Post, who had recorded the statement of P.W. 3, it clearly revealed that P.W. 3 had stated before him that both the accused persons had assaulted her husband Gobardhan with lathis. P.W. 12, who had recorded the statement of P.W. 3, has clearly stated in his cross-examination that P.W. 3 had disclosed that first Gouranga Ghana assaulted her husband Gobardhan & thereafter Maheswar Ghana assaulted her husband. Further P.W. 3 in her statement recorded u/s 161 Code of Criminal Procedure. had clearly stated that both the accused persons caused injuries on her husband Gobardhan by assaulting him with lathis. 11. Further P.W. 3 in her statement recorded u/s 161 Code of Criminal Procedure. had clearly stated that both the accused persons caused injuries on her husband Gobardhan by assaulting him with lathis. 11. Learned Sessions Judge on an analysis of the evidence of P.W. 3, who is an eye witness to the occurrence & the evidence of P.W. 12 as well as the FIR, came to find that there was no reason to disbelieve the evidence of P.W. 3 & that her evidence did not suffer from any substantial discrepancies or inconsistencies with regard to the material part of the occurrence is concerned. The evidence of P.W. 3 clearly proved that both the accused persons caused injuries on the head of deceased Gobardhan by means of lathis. Moreover, as the accused persons had caused such injuries on the vital part of the body of deceased Gobardhan, they had the intention to cause the death of Gobardhan. As both the accused persons restrained Gobardhan while he was returning to his house & assaulted him by lathis one after another, causing injuries on his person, Learned Sessions Judge came to hold that the accused persons had common intention to cause injuries on deceased Gobardhan Palai, which were likely to cause his death & therefore, both the accused persons are liable for the commission of offence of murder in furtherance of their common intention. 12. Coming to the charge u/s 323 Indian Penal Code, in absence of any evidence on record to establish the said charge & as the evidence of P.W. 3 was completely silent with regard to any injury sustained by her on account of assault by the accused persons, Learned Sessions Judge came to hold that the prosecution has failed to prove its charge u/s 323 Indian Penal Code read with Section 34 Indian Penal Code. 13. Accordingly, on the basis of such evidence on record, Learned Sessions Judge came to hold that both the accused persons are guilty of offences under Sections 302/34 Indian Penal Code & convicted them thereunder. 14. Learned Counsel for the Appellants forcefully submits that in absence of any corroborating evidence, the conviction of the accused persons based solely on the evidence of P.W. 3 cannot be sustained. 14. Learned Counsel for the Appellants forcefully submits that in absence of any corroborating evidence, the conviction of the accused persons based solely on the evidence of P.W. 3 cannot be sustained. It is further submitted that as the evidence of P.W. 3 is not free from contradictions & inconsistencies, especially with regard to the sequence of events, the fact as to who assaulted deceased Gobardhan first, the exact part played by the accused persons in the alleged crime & also with regard to the exact time of occurrence, no reliance can be placed from the evidence of P.W. 3 for recording an order of conviction against the accused persons. It is also submitted that as the prosecution has failed to attribute any strong motive or intention on the part of the accused persons, except the plea that the accused persons had blamed the deceased for having practised witchcraft for killing their buffaloes, the conviction of the accused persons u/s 302/34 Indian Penal Code is not proper & justified & at best it would be a case u/s 304 Part-I Indian Penal Code. 15. From the evidence of P.W. 3, it is seen that she had clearly stated that both the accused persons assaulted her husband with lathis & caused injuries on his person. Though there are some minor discrepancies regarding the sequence of events & with regard to exact time of occurrence, the same are not of much relevance, inasmuch as, the version of P.W. 3, as narrated in the Court, does corroborate the FIR & there are no material contradictions or inconsistencies, so as to disbelieve the evidence of P.W. 3. Moreover, nothing has been elicited from her crossexamination by the defence to discredit or doubt the veracity of her evidence given in the Court. 16. On an analysis of the, evidence on record, as discussed above, we however find that the prosecution has not been able to establish any strong motive or any pre-planning on the part of the accused persons for committing the offence of murder of Gobardhan, except the fact that they had alleged that Gobardhan had practiced witchcraft, as a result of which one of their buffalo had died few days prior to the date of occurrence. Further, it is seen that there was no pre-meditation on the part of the accused persons & both of them had assaulted deceased Gobardhan with lathis, which they were carrying at that time & the entire incident appeared to have taken place in the heat of passion & on the spur of the moment, when the accused persons were challenging the deceased for having killed their buffalos by practicing witchcraft. In view of such fact, we are of the considered view that the interest of justice would be best served if the conviction of the accused persons is modified to one u/s 304 Part I Indian Penal Code. 17. Accordingly, the conviction of both the accused persons Appellants u/s 302/34 Indian Penal Code is set aside but they are convicted u/s 304 Part-I Indian Penal Code & each of them are sentenced to undergo imprisonment for ten years & shall pay a fine of Rs. 5000 each, in default both the Appellants shall undergo further imprisonment for one year each. It is needless to say that the period of imprisonment already undergone by the Appellants shall be treated as set off. On realization of the fine amount of Rs. 10,000, the same shall be paid to Sampati Palai, wife of deceased Gobardhan Palai. 18. The Criminal Appeal is accordingly disposed of. A.S. Naidu, J. 19. I agree.