JUDGMENT : S.C. Parija, J. - This Criminal Appeal is directed against the judgment dated 04.10.1997, passed by the Additional Sessions Judge, Sambalpur, in S.T. No. 258/11 of 1996-97 holding the Appellants guilty for the offences under Sections 457/354/302/201/34 Indian Penal Code & convicting them thereunder. 2. The case of the prosecution, in brief, is that on 11.10.1995 night, while Mohini Naik (informant) was sleeping in one room & her father Tikeswar Naik was sleeping in the adjacent room & a lamp was burning in her room, at about 11 P.M., somebody knocked at the door of her room, asking her to open the door. She recognized Khageswar from his voice & when she asked as to who was knocking the door, Khageswar of her village disclosed his name. When she opened the door, she found Khageswar, Dusasan & Kampa were standing at the door & suddenly Khageswar & Kampa entered into the room & molested her, as a result of which, she shouted at them to go away. At that time, hearing her shout, her father Tikeswar woke up & arrived at the spot & abused the accused persons in obscene language. All the three accused persons caught hold of her father Tikeswar & assaulted him by fist blows & kicks & dragged him towards the mango tree near the road & when she (informant) followed them, accused Khageswar & Kampa threatened her that if she will come out, they will kill her. Out of fear, she stood at their house near the tati door & in the moon-lit night, she saw the three accused persons assaulting her father & when her father Tikeswar abused them, accused Khageswar being annoyed brought a budia from his house, which is nearby, & dealt blows to her father & accused Dusasan brought a lathi & assaulted her father. When her father shouted for help, she got frightened & made hulla & when Khageswar saw her, he ran towards her with the budia threatening to kill her & out of fear, she entered inside her room & closed the door. From inside her room, she heard her father crying & at the same time, she heard the voice of accused Puran, Ganga and Ors. of her village, who were also shouting to kill her father. About two hours thereafter when the shout stopped, she came out & saw Puran, Ganga and Ors. From inside her room, she heard her father crying & at the same time, she heard the voice of accused Puran, Ganga and Ors. of her village, who were also shouting to kill her father. About two hours thereafter when the shout stopped, she came out & saw Puran, Ganga and Ors. numbering 5 to 7 persons standing at the mango tree & throwing water to wash the blood stains lying on the earth & when they left the spot, she went there & saw the dhoti of her father was lying on the way & it was stained with blood. She suspected that her father had been carried some where in naked condition & out of fear, she did not disclose the said fact to any body even on the next day morning, i.e. 12.10.1995, apprehending that she may be killed by the accused persons. At about 3 P.M. on 12.10.1995, she heard hulla in the village that the dead body of her father was lying in Laharanga nala. She arrived there & identified the dead body of her father & narrated the incident to Krushna Rohidas, Tiknu Majhi & Pitabas Mahanandia and Ors. of the village & as the accused persons have their houses nearby, she could not go to the Police Station to lodge the report. 3. The O.I.C., Govindpur P.S. hearing that a dead body was floating in Laharanga nala at Raghunathpali village, he entered the said fact in the Station Diary & proceeded to the spot & ascertained that the dead body was of one Tikeswar Naik of that village. He came to the house of deceased Tikeswar & met Mohini Naik, daughter of the deceased, who orally reported about the incident, which was reduced into writing & registered as Govindpur P.S. Case No. 44 dated 12.10.1995 & investigation was taken up. 4. In course of investigation, the S.I. of Police, Govind Pur P.S. visited the spot, held inquest over the dead body of Tikeswar in presence of witnesses, sent the dead body for post-mortem examination, seized the dhoti of deceased Tikeswar on production by the informant, Mohini, examined the witnesses, seized blood stained earth & sample earth & arrested the accused Khageswar, Kampa & Dusasan. While in police custody, the accused persons gave disclosure statement on the basis of which, the police seized the budia, on being led & produced by accused Khageswar & a lathi on being led & produced by accused Dusasan & lungis on being produced by accused Dusasan & Kampa. The accused persons were forwarded to the custody & the charge of investigation was handed over to the C.I. of Police, Kuchinda (P.W.9), who in course of further investigation, examined the witnesses, arrested the other accused persons, namely, Ganga @ Ganeswar, Padmalochan, Bihari Banchhor & Raghunath @ Bala Makar & forwarded them to custody. He sent the seized budia & lathi for chemical examination & after completion of the investigation, filed charge sheet against all the accused persons. 5. The plea of the accused persons was one of complete denial & that they have been falsely implicated in the case. 6. The prosecution, in order to establish the charges against the accused persons, examined ten witnesses & the defence examined one witness in support of its plea. 7. P.W. 4, Mohini Naik (informant) is the daughter of deceased Tikeswar & is the solitary eye witness to the occurrence. P.W. 5, Saibani Naik is the widow of deceased Tikeswar & mother of the informant Mohini. P.W. 8 is the doctor of Govindpur C.H.C., who conducted the post-mortem examination on the dead body of Tikeswar & also examined the weapon of offence. P.W. 1, Krushna Rohidas & P.W. 7, Tiknu Majhi are the co-villagers & witnesses to the recording of disclosure statements made by accused Khageswar & Dusasan, while they were in police custody & are also witnesses to the seizure of blood stained budia on being led & produced by accused Khageswar from his house, the seizure of lathi, being led & produced by accused Dusasan from his house & seizure of blood stained lungis of accused Dusasan & accused Kampa, recovered from their houses. P.W. 3, Pitabas & P.W. 6, Paramananda are the witnesses to the seizure of blood stained dhoti of the deceased Tikeswar on production by informant Mohini, blood stained earth & the sample earth from the spot. P.W. 10 is the OIC of Govindpur P.S., who had reduced the oral report of the informant Mohini into writing, on the basis of which the case was registered & investigated into. P.W. 10 is the OIC of Govindpur P.S., who had reduced the oral report of the informant Mohini into writing, on the basis of which the case was registered & investigated into. P.W. 9 is the C.I. of Police, Kuchinda, who had further investigated into the case & submitted the charge sheet. 8. The informant Mohini (P.W.4) fully corroborated the FIR story & reiterated the entire incident, which took place on the night of 11.10.1995 at about 11 P.M. 9. The I.O. (P.W.10) stated in his evidence that during investigation, he seized the blood stained lungi from the house of accused Dusasan & Kampa (M. Os.III & IV) in presence of P. Ws.1 & 7. P.W. 1, who had been declared hostile, supported the seizure of M. Os. III & IV from the house of Dusasan & Kampa. P.W. 7 denied to have seen the seizure of M. Os.III & IV from the house of accused Dusasan & Kampa & he stated that he had seen the seizure of the said M. Os. at the Police Station. The Chemical Examination Report in respect of M. Os.III & IV revealed that lungi of Dusasan was stained with human blood of 'B' &roup, whereas the lungi of Kampa was stained with human blood. Both the accused Dusasan & Kampa failed to explain as to how their lungis got stained with human blood. The I.O. (P.W.10) further stated that while accused Khageswar & Dusasan were in police custody, they made statements disclosing the place, where they had concealed the weapons of offence, i.e. budia & lathi, which were recorded in presence of P. Ws. 1 & 7. P.W. 7 corroborated the same & stated that the police took accused Khageswar, Dusasan & Kampa to the Police Station & later on, on being called by the police, he as well as P. Ws 1 & 3 proceeded to the Police Station, where Khageswar admitted in their presence that he had given fist blows to Tikeswar & when police threatened, he disclosed that he assaulted Tikeswar by means of a budia & when the police asked him as to where he kept the budia after assault, accused Khageswar disclosed that he had kept the budia in his house & that the police reduced the above statement of Khageswar into writing, which he signed as a witness. P.W. 7 further stated that accused Dusasan also disclosed to have given fist & blows to deceased Tikeswar, which was reduced into writing. The I.O. (P.W.10) had further stated that accused Khageswar & Dusasan had led the police & the witnesses to the place where the budia & the lathi were concealed, which were seized from their respective houses. 10. Coming to the medical evidence, the doctor (P.W.8), who conducted the post-mortem examination on the dead body of Tikeswar, found the following external injuries: (i) Incised wound 3 1/2" x 1/2" & 1/2" on right lower jaw horizontal in direction. (ii) Incised wound 1 1/2" x 1/2" x 1/2" on left cheek in line with left angle of mouth, teeth exposed. (iii) Contusion 3" x 2" on left side forehead, (iv) Contusion 1/2" x 2" over right eye, (v) Contusion 1 1/2" x 1" on left arm, (vi) Abrasion 2" x 1" on left shoulder, (vii) Abrasion 1" x 1" over right shoulder, (viii) Abrasion 1" x 1" on right upper thigh. 11. P.W. 8 stated that on dissection he noticed the right lower jaw bone is cut under injury No. 1 with dislocation of three teeth. According to P.W. 8, all the injuries were ante mortem in nature & the death of Tikeswar was due to multiple injuries causing haemorrhage & shock, which was homicidal in nature. P.W. 8 further stated that the injuries found on the dead body of deceased Tikeswar were possible by sharp edge of budia & three contusions are possible by the blunt side of budia as well as by wooden handle of budia or by bamboo lathi. He also stated that the other injuries like abrasions may be caused due to fist blows, kicks & slaps. He identified the budia (M.O.I) & lathi (M.O.II), which had been sent to him for examination & opinion. 12. In his cross-examination, P.W. 8 stated that he had measured the sharp cutting portion of M.O.I at the time of examination & by fall of sharp cutting stone either injury No. 1 or injury No. 2 may be possible but by single fall both the injuries cannot be possible, as they are different sides of the body. He further stated that if after fall, the injured will rise & again fall on similar object, he may not get injury No. 2 & that will be not of similar force. He further stated that if after fall, the injured will rise & again fall on similar object, he may not get injury No. 2 & that will be not of similar force. He also stated that injury Nos. 3 to 8 may be possible by fall on hard & rough substance & by subsequent fall. 13. Relying on the evidence of P.W. 4 (informant), who is the sale eye witness & the disclosure statements made by the accused persons, namely, Khageswar, Dusasan & Kampa, while in police custody, leading to discovery of the weapon of offence like budia & lathi & discovery of their wearing apparels (lungis), which were stained with blood & considering the evidence of the I.O.(P.W.10), Learned Additional Sessions Judge proceeded to hold accused Khageswar, Dusasan & Kampa guilty of offences under Sections 457/354/506/302/201/34 Indian Penal Code & convicted them thereunder. In absence of the incriminating materials to implicate other accused persons, they were found not guilty & were acquitted of the charges. 14. Learned Counsel for the Appellants submits that in absence of any corroborating evidence, Learned Additional Sessions Judge erred in relying upon the version of the sole eye witness (P.W.4) for basing the order of conviction. Learned Counsel further submits that as P.W. 4 had not seen accused Kampa using any weapon or assaulting the deceased Tikeswar, his conviction is not proper & justified. It is further submitted that no blood stains having been found on the lathi (M.O.II) & P.W. 4 having specifically alleged that accused Dusasan was assaulting the deceased with the lathi, the conviction of accused Dusasan is also not proper & justified. It is also submitted that as P. Ws 1 & 7 having not supported the recovery of budia (M.O.I) at the instance of Khageswar & the said M.O.I. having not been found to have been stained with human blood of the group of the deceased, accused Khageswar should not have been held guilty of offence of murder. It is further submitted that as the accused persons had no common intention to commit murder of Tikeswar & the prosecution having failed to prove any motive, the conviction of the accused persons under Sections 302/34 Indian Penal Code is not proper & justified. It is further submitted that as the accused persons had no common intention to commit murder of Tikeswar & the prosecution having failed to prove any motive, the conviction of the accused persons under Sections 302/34 Indian Penal Code is not proper & justified. Accordingly, it is submitted that as the chain of circumstances is neither strong nor complete fully corroborating the evidence of the sole eye witness (P.W.4), which itself is not free from inconsistencies & contradictions, the conviction of the accused persons cannot be sustained. In the alternate, it is submitted that as the prosecution has failed to establish that the accused persons had any pre-meditation or motive to commit murder of Tikeswar, their conviction u/s s 302/34 Indian Penal Code, is not sustainable & at best the accused persons may be held guilty of offence u/s 304 Part-II Indian Penal Code. 15. On an analysis of the evidence on record, it is seen that the informant, who is the sole eye witness to the occurrence, has fully corroborated the FIR story, wherein the accused persons-Appellants have been named. The circumstantial evidence, such as the blood- stains found on the wearing apparels of the accused persons, the seizure of the weapons of offence i.e. budia & lathi at the instance of the accused persons, all go to show that it is the accused persons alone, who are responsible for the death of Tikeswar. Moreover, the presence of the accused persons in the house of P.W. 4 & their attempt to molest the said P.W. 4 also stands established. Though there are minor discrepancies in the evidence of the informant (P.W.4), the same are neither material nor substantial so as to disbelieve the version of P.W. 4. We find the evidence of the informant (P.W.4) to be cogent, credible & consistent, fully supporting the prosecution case & the order of conviction based on such evidence coupled with medical evidence, Chemical Examination Report & the attending circumstances, cannot be faulted. 16. We, however, find that the prosecution has failed to establish that the accused persons had any prior motive or pre-meditation to kill deceased Tikeswar & admittedly, the prosecution has not been able to establish that there was any enmity between deceased Tikeswar or her daughter Mohini (P.W.4) with the accused persons. 16. We, however, find that the prosecution has failed to establish that the accused persons had any prior motive or pre-meditation to kill deceased Tikeswar & admittedly, the prosecution has not been able to establish that there was any enmity between deceased Tikeswar or her daughter Mohini (P.W.4) with the accused persons. It appears, the accused persons who had gone to the house of P.W. 4 to commit sexual act, on being abused by Tikeswar in obscene language, got provoked & attacked Tikeswar in a fit of anger & on the spur of the moment, without any prior planning or design. The act of the accused persons appears to be more by way of sudden retaliation in the heat of passion, on being abused by deceased Tikeswar in obscene language & was not pre-planned or intentional. Accordingly, we feel, the interest of justice would be best served, if the conviction of the accused persons u/s 302/34 Indian Penal Code is modified & reduced to one u/s 304 Part-II Indian Penal Code. The conviction of the accused persons under Sections 457/354/506/201/34 Indian Penal Code needs no interference. 17. In view of the above, the conviction of the accused persons under Sections 302/34 Indian Penal Code is set aside & all the accused persons-Appellants are convicted u/s 304 Part-II Indian Penal Code & sentenced to undergo rigorous imprisonment for a period of 8 years each. The conviction & sentence of the accused persons-Appellants u/s s 457/354/506/201/34 Indian Penal Code is maintained. The sentences of the accused persons-Appellants are to run concurrently. It is needless to say that the period of imprisonment undergone by the accused persons-Appellants shall be treated as set off. 18. The Criminal Appeal is accordingly disposed of with the above modification. A.S. Naidu, J. 19. I agree.