JUDGMENT (1) This appeal is directed against the judgment dated 5-12-1998 passed by the learned Sessions Judge, phulbani in Sessions Trial No. 27 of 1996 convicting the appellant under Section 302, i. P. C. and sentencing him to undergo rigorous imprisonment for life. (2) The prosecution case, in brief, is that there was a prior dispute between the de-ceased-Hadibandhu Danta and the accused persons, namely, Hari Sankara Meher, Giri behera, Tulasa Meher and Maheswar Meher in respect of Baunsuni Grama Panchayat election. Hadibandhu Danta, the deceased, was a supporter of Congress (I) Parry and the appellant along with other accused persons were the supporters of Janata Party. The record reveals that the appellant was in search of an opportunity to take drastic action against the deceased due to ill-feelings at the time of Election. On 2-8-1994 when the deceased along with Bhubana Meher (PW 3) and Dolamani Behera (PW 4) were going in two bicycles from the hospital chhak of baunsuni towards Maulimunda, the occurrence took place at about 10. 30 p. m. The deceased was sitting on the carrier of the bicycle of the informant (PW 3). When they reached the mango grove, appellant along with other accused persons suddenly appeared armed with Bhujali (M. O. 1) and caught hold of the bicycle. Appellant told the deceased "tor KEN (KEUN) HATHA debu DEY" (which hand you want to sacrifice) and dealt Bhujali blow on his right and as a result of which he fell down on the ground with pool of blood. Thereafter, the accused persons fled away from the spot. The injured was shifted to Baunsuni Primary health Centre where he was treated by Dr. Chandra Shekhar Panigrahi (P. W. 1). As the condition of the injured was serious, he was shifted to Sonepur hospital for better treatment where he was examined and treated by Dr. Jyotirmaya Mishra (P. W. 2). Since there were no better facilities at Sonepur, the injured was referred to V. S. S. Medical college, Burla by P. W. 2, but on the way he succumbed to the injury. P. W. 3 lodged the f. I. R. at Baunsuni Police Station in the night of occurrence. Sunil Kumar Mandal (P. W. 11) is the Investigating Officer who after receiving the said F. I. R. registered the case and investigated the crime. P. W. 11 recorded dying declaration of the deceased vide Ext. 15. P. W. 3 lodged the f. I. R. at Baunsuni Police Station in the night of occurrence. Sunil Kumar Mandal (P. W. 11) is the Investigating Officer who after receiving the said F. I. R. registered the case and investigated the crime. P. W. 11 recorded dying declaration of the deceased vide Ext. 15. After death of the deceased, the I. O. apprehended the appellant and Giri Behera, another accused. Both were charge sheeted under Section 302 read with Section 34,i. P. C. for committing murder of the deceased whereas Maheswar meher and Tulsa Meher were charge-sheeted under Section 216 read with Section 34, I. P. C. as they concealed the accused persons in their house with an intention to prevent their arrest. The appellant, while in custody, led the I. O. to the place of concealment and gave recovery of the weapon of offence, bhujali, M, O. 1 and that was seized. Thereafter, investigation of the case was handed over to Subash Chandra Mishra (P. W. 10)whp submitted the charge sheet on 18-11-1994 after completion of investigation. Dr. Dhaneswari Jena (P. W. 8)conducted autopsy on the dead body of the deceased and found the following external injuries : " (i) After cutting 5 nylon stitches wound was found to be incised wound of 4" x 1" x 1" obliquely situated over the lateral aspect of right upper arm extending above down words. (ii) Upper and tappering laterally 5" below the tip of acromian process. Lower end is 3" above the antiquibitle fossa. (iii) Incised wound 31/2" x 1" x 1" seen after cutting 7 nylon stitches present transversely over right antiqubital fossa: Medial end of the wound situated over the medial epicondile. Lateral end is present over lateral epicondile of humorous". On dissection he found the following internal injuries: (i) The delatered muscle and brachialis cut. All muscels are cut upto bone. No bone injury. (ii) All muscles are cut present at the anticubital fossa and no bone injuries". As per the opinion of P. W. 8, all the injuries were ante-mortem in nature the cause of death was due to haemorrhage and shock and the time of the death at the time of postmortem examination was within 24 to 36 hours. The post-mortem report was marked ext. 8. As per the opinion of P. W. 8, all the injuries were ante-mortem in nature the cause of death was due to haemorrhage and shock and the time of the death at the time of postmortem examination was within 24 to 36 hours. The post-mortem report was marked ext. 8. He opined that all the injuries could be possible by sharp cutting weapon like bhujali, M. O. I. In the cross-examination, he opined that in all cases such injuries would not cause death. The post-mortem report Ext. 8 reveals that the deceased suffered homicidal death. (3) As per the prosecution case, P. W. 3 is the eye-witness to the occurrence so also P. W. 4. The prosecution has also proved the seizure of the wearing apparels of the deceased which were sent for chemical examination. The chemical examination report was marked Ext. 12, inquest report Ext. 6 and seizure of wearing apparels of the accused ext. 18. Learned Sessions Judge on an analysis of the evidence on record came to the finding that the prosecution was not able to prove anything implicating accused Giri behera in the commission of offence under section 302, IPC. Therefore, he was not held guilty of offence thereunder. So far as accused Maheswar and Tulasa are concerned, as there was no material against them, they were also acquitted from the charge under sections 216/34, IPC but the present appellant Hari Sankar Meher was convicted under Section 302, IPC on the ground that the evidence on record proves that he dealt the blows and inflicted the injuries which resulted in homicidal death of the deceased. (4) Learned counsel appearing for the appellant submitted that prosecution case is based on the dying declaration and the evidence of P. W. 3 who is the eye-witness to the occurrence. The dying declaration was not acceptable as P. W. 1 the doctor who initially treated the deceased specifically stated in his examination in chief that when the treatment was being given by him to the injured, the latter was in unconscious condition. Prosecution has not proved if the deceased regained his sense so as to be examined by the police officer and such statement being treated as dying declaration. Prosecution has not proved if the deceased regained his sense so as to be examined by the police officer and such statement being treated as dying declaration. He was treated by P. W. 2 at Sonepur hospital and he referred the deceased to V. S. S. Medical College as the condition of the deceased was deteriorating and nowhere P. W. 2 said that the injured was in a condition to speak or he had regained his consciousness. As regards the eye-witness to the occurrence p. W. 3, learned counsel for the appellant submits that P. W. 3 lodged the F. I. R. immediately after the occurrence and in his examination'in-chief he categorically stated that he told about the occurrence to one bhubana Mishra, who was the Sarpanch of baunsuni Gram Panchayat and asked him to give him a bicycle. Said Bhuban Mishra gave him a bicycle to go to the police station where he lodged the F. I. R. Said report was scribed by one Suresh Baksi of Badikanata on the instructions of P. W. 3. The F. I. R. was scribed in the house of said Suresh baksi. P. W. 3 categorically stated that what he told Suresh Baksi to scribe, but he was not aware about the contents of the F. I. R. As such, his evidence cannot be relied upon. On the basis of such shaky evidence, the appellant should not be convicted. Learned Standing Counsel appearing for the State, on the other hand, submitted that dying declaration recorded by P. W. 11 is to be accepted as he is a disinterested official, i. e., police officer. Taking into consideration condition of the injured, he recorded the dying declaration in presence of p. W. 5., therefore, the same be accepted. So far as P. W. 3 is concerned, he submitted that different persons may react differently to a particular occasion and such reaction in case of the witnesses may vary from person to person. Therefore, the fact that P. W. 3 first told the incident to one Bhuban mishra, the Sarpanch of the Gram panchayat and thereafter he also stated the fact before the scribe of the F. I. R., Suresh baksi and lodged the F. I. R. instead of attending to the deceased cannot be considered against the prosecution and his evidence is not liable to be discarded on that ground. Rather, it is very natural that when the accused threatened the said witnesses with dire consequences, he left the spot and reported the matter before the police station. (5) As human behaviour may vary from person to person in case of a person present at the spot where the offender assaults the injured or where the offender attacks a person with dangerous weapon. Some person become stunned, speechless and stands rooted to the spot. Some become hysteric and starts wailing. At the same time some person may shout for help, some run away to keep themselves as far removed from the spot as possible and some may go to rescue the victim even going to the extent of counter attacking the assailants. Therefore, there is no strait jacket formula or set of natural reaction to consider or discard the evidence of those witnesses. (See State of Punjab v. Hardan Singh and others (2004) 27 OCR (SC) 274) : (2003 Cri LJ 5048). In view of the above, the evidence of P. W. 3, the eyewitness to the occurrence, cannot be discarded on the ground that he has not reacted in a particular manner as argued by the appellant. (6) Evidence of P. W. 3, who is the eyewitness to the occurrence, is partially supported by P. W. 4, who turned hostile to the prosecution by refusing to speak anything incriminating against all the accused persons. P. W. 4 corroborated to P. W. 3 by stating that in the occurrence night the witnesses and the deceased proceeded in the manner stated by P. W. 3 and that at the spot, he heard "shouting of the deceased hadi Danta. Bhubana Meher. P. W. 3 and accused Harishankar. On hearing the shouts on the way, out of fear I went towards my house. " That part of the evidence of P. W. 4 has not been disputed by the accused persons or contradicted in any manner. Read together evidence of P. Ws. 3 and 4, prosecution has thus proved that the appellant was the author of the injury. On hearing the shouts on the way, out of fear I went towards my house. " That part of the evidence of P. W. 4 has not been disputed by the accused persons or contradicted in any manner. Read together evidence of P. Ws. 3 and 4, prosecution has thus proved that the appellant was the author of the injury. Learned counsel for the appellant argues that in view of the evidence of P. W. 8 that "i have not mentioned in the P. M. report that the injuries which I found on the deceased would cause death in ordinary course of nature", the deceased could have survived if timely proper treatment would have been provided to him. In that respect, while disputing to the aforesaid argument of the appellant, learned Standing Counsel stated that evidence of P. W. 1 clearly indicates that because of profuse bleeding he was unable to properly examine the injured limb and after giving pressure bandage to stop the bleeding he advised for immediate shifting of the deceased to District headquarters Hospital. Therefore, there was no negligence in treatment. He further argued that apart from that in view of the provision in Explanation-2 of Section 299, IPC, the aforesaid defence is not available to the appellant. Explanation 2 in Section 299, IPC provides that "where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented. " as per the injury report and evidence of p. W. 8, Dr. Dhaneswari Jena, cause of the death of the deceased Hadibandhu Danta is homicidal. P. W. 3, the eye-witness to the occurrence in his evidence has clearly stated that the appellant-Hari Shankar Meher assaulted to the right hand of the deceased by means of a Bhujali and the cause of death was due to haemorrhage and shock. The defence has not dislodged the said evidence in any manner. Hence, the appellant is the author of the said injury. The defence has not dislodged the said evidence in any manner. Hence, the appellant is the author of the said injury. (7) Learned counsel for the appellant alternatively argued that if the prosecution evidence is believed, then also that does not make out a case of murder punishable under Section 302 IPC, inasmuch as, the appellant had no intention to cause the death of the deceased and the injury inflicted by him, as reported by the doctor was not sufficient to cause the death in ordinary course of nature and under such circumstance, culpability of the appellant may at best come under Section 304, IPC. Learned Standing counsel resisted to that argument on the ground that when the injuries resulted in the death of the deceased, whether or not sufficient in ordinary course of nature, the offence made out is murder punishable under Section 302, IPC. (8) In this case, the injuries indicated above are on the hand, which is not a vital part of the body so as to cause death in ordinary course if injury is caused. The nature of injury resulted in profuse bleeding and that led to the death of the deceased and such fact situation is clearly readable from the evidence of P. Ws. 1 and 8, the two doctors. The statement of the accused at the time of inflicting the injury was not also expressing the intention to kill but asking the deceased to sacrifice one hand. Admittedly, there was enmity because of political rivalry and dispute arose during the Panchayat election. Under such circumstance, there was no doubt that the appellant caused death of the deceased but without having knowledge that the bodily injuries caused by him would result in the death of the deceased or that he knew that the injuries were so immensely dangerous that it must, in all probability, cause death or likely to cause death of the deceased. Under such circumstance, the offence committed by the appellant does not qualify the definition of the term "murder" as provided in Section 300, ipc, but it fulfils the requirement of culpable homicide as defined in Section 299, IPC, because the appellant had the intention of causing bodily injury and even if the appellant had no knowledge or intention to cause death of the deceased, but such bodily injury resulted in the death of the deceased. Thus, we agree with the alternative argument of the appellant that the offence committed by the appellant is punishable under Section 304, First Part of the IPC and not under Section 302, IPC. Thus we set aside the order of conviction and sentence under Section 302, IPC awarded by the trial court and in its place we find the appellant guilty under Section 304, First Part, IPC and impose sentence of rigorous imprisonment for 10 (ten) years. It appears from the record that the accused appellant-Handibandhu Danta was arrested on 23-8-1994, but he was granted bail by the trial Court on 23-12-1994. After pronouncement of the judgment by the trial court, he is inside the custody. Since this court award sentence of rigorous imprisonment for ten years, the trial Court is directed to calculate the period of sentence already undergone by the accused appellant-Hadibandhu Danta and if he is found to have completed the sentence as imposed by this court then the appellant be set at liberty forthwith, if his detention in jail custody is not required in connection with any other criminal case. The Jail Criminal Appeal is accordingly allowed in part. I agree. Order accordingly.