JUDGMENT : Pradip Mohanty, J. - This criminal appeal from jail is directed against the judgment of conviction and order of sentence dated 27.03.2001 passed by the learned Additional Sessions Judge, Nuapada in S.C. No. 22/7 of 1999-2000. 2. The case of the prosecution is that on 02.10.1998 at about 5:00 PM, the appellants, being armed with iron rod and lathies, came to the house of the deceased, called him to come outside the house and when he came, they with the common intention to kill assaulted him by means of the weapons with which they were armed, as a result of which he fell down and became unconscious. He was removed to Nuapada hospital for treatment, but on the next day, i.e., on 03.10.1998, he succumbed to the injuries. P.W.1 lodged an F.I.R. in the Beltukiri Outpost under Jonk Police Station on receipt of which police took up investigation and ultimately filed charge-sheet against the appellants under Sections 302/323/34, I.P.C. 3. On receipt of the charge-sheet, the learned Magistrate took cognizance of the offence and committed the case to the Court of Session. The learned Additional Sessions Judge framed charge under Sections 302/323/34, IPC against the appellants who pleaded not guilty and claimed to be tried. From the side of the prosecution, twelve witnesses were examined including the doctor and the investigating officer and seventeen documents were exhibited. One Dolko Bariha was examined on behalf of the appellants in their defence as D.W.1. In their statements u/s 313, Cr.P.C, the appellants took the plea of denial. The learned Additional Sessions Judge taking into consideration the evidence adduced before him held all the appellants guilty u/s 302/34, IPC and further held appellant no.4-Uderam Bariha guilty u/s 323, IPC and convicted them thereunder. He sentenced all the appellants to undergo imprisonment for life for the offence u/s 302/34, IPC, and further sentenced appellant no.4-Uderam Bariha to undergo simple imprisonment for one month for the offence u/s 323, IPC. 4. Mr. Acharya, learned counsel for the appellants assails the impugned judgment on the following grounds: (i) Prosecution has not been able to establish the motive behind the crime; (ii) from the evidence it is clear that the prosecution has suppressed some material facts; (iii) the evidence of ocular witnesses does not tally with the medical evidence; and (iv) there is no material against the appellants to convict them u/s 34, IPC. 5. 5. Mr. Nayak, learned Additional Government Advocate, on the other hand, contended that the evidence of P.Ws. 2, 3, 4 and 5, who are witnesses to the occurrence, is very clear, cogent and convincing Nothing has been elicited by way of cross-examination to discard their evidence. The prosecution story gets support from the medical evidence adduced through P.W.7 and P.W.9. It has been clearly established by the prosecution that all the accused persons went to the spot armed with weapons with common intention to assault the deceased and as such Section 34 is clearly attracted. Therefore, interference of this Court with the impugned judgment of conviction and sentence is not warranted. 6. Perused the LCR. P.W.1 is the informant and son of the deceased who, in his examination-in-chief, has deposed that on the day of occurrence, he had been to the paddy field for grazing the cows. He was informed by one Duloko Bariha of his village that his father was seriously assaulted by the appellants by means of iron rod and lathies. He came to the spot and found his father lying in an unconscious condition near the door of their house with bleeding injuries on his person. His mother and sister and the elder brother of his father, who were present there, intimated him about the assault caused by the accused persons. He then went to Beltukiri Outpost and lodged FIR (Ext.1). Nothing has been elicited from him in cross-examination to discard his evidence. P.W.2 is a co-villager and neighbour of the deceased. He specifically deposed that accused Saheb Bariha was holding one iron rod and other accused persons were holding lathies. All the accused persons came to the spot and of them accused Saheb Bariha called the deceased to come out of his house and when he came out, he (Saheb Bariha) asked the deceased whether he was quarreling with his father. When the deceased wanted to go near the father of the accused Saheb Bariha, the later dealt an iron rod blow on the right side head of the deceased. Then accused Sidhe Bariha dealt a lathi blow on the head of the deceased and after him other accused persons dealt lathi blows on the person of the deceased. As a result of such assauli, the deceased fell down sustaining bleeding injuries. Then accused Sidhe Bariha dealt a lathi blow on the head of the deceased and after him other accused persons dealt lathi blows on the person of the deceased. As a result of such assauli, the deceased fell down sustaining bleeding injuries. He further deposed that at that point of time, the lady accused (Parbati Bariha) was shouting 'MARA MARA' and that due to such assault, the deceased lost two teeth at the place of occurrence. Out of fear, he went inside his house and later on heard about the death of the deceased at Nuapada hospital. He also proved Ext. 2 under which the iron rod and lathi were seized in his presence. In his cross-examination, he has admitted that he had not seen the actual assault by the lady accused (appellant no.2) but she was holding a lathi in her hand. P.W.3 is the daughter-in-law of the elder brother of the deceased. She also corroborated the evidence of P.W.2 and specifically stated that accused Saheb Bariha dealt an iron rod blow on the left-hand side head of the deceased and then other accused persons dealt lathi blows on the head and other parts of his body for which the deceased sustained bleeding injuries on his person. Nothing has been elicited in cross-examination. P.W.4 is a co-villager and an eye witness to the occurrence. He also supported the version of P.W.2 and specifically stated in his cross-examination that 1 to 2 hours before the occurrence, accused Sidhe Bariha had a quarrel with the deceased. P.W.5 is the widow of the deceased and an ocular witness, who specifically deposed that appellant Saheb Bariha dealt an iron rod blow on the right side of the head of her husband and thereafter accused Sidhe dealt a lathi blow as a result of which her husband fell down sustaining bleeding injuries. P.W.6 is a co-villager and a post occurrence witness. He is a witness to the seizure of the tooth of the deceased vide seizure list (Ext.5). P.W.7 is the doctor who conducted postmortem examination over the dead-body of the deceased and found nine injuries which were ante mortem in nature. Injury nos. 1, 6, 7 were grievous and all other injuries were simple in nature. He specifically opined that the cause of death was due to coma resulting from subdural heamatoma pressing the brain matter arising out of the head injury. Injury nos. 1, 6, 7 were grievous and all other injuries were simple in nature. He specifically opined that the cause of death was due to coma resulting from subdural heamatoma pressing the brain matter arising out of the head injury. P.W. is the doctor who treated the deceased first and found four injuries. As the deceased was serious, he was immediately referred to the District Headquarter Hospital, Nuapada and the matter was intimated to the O.I.C. Jonk P.S. P.W.11 Mayaram Sabar was the A.S.I. of police attached to Beltukiri Outpost at the relevant point of time. He received the FIR, sent it to the OIC, Jonk P.S. for formal registration, visited the spot, examined some of the witnesses, conducted inquest over the dead body of the deceased and made over the charge of investigation to P.W.8 Balabhadra Deep, the then O.I.C. of Jonk P.S. P.W.8 received the charge of further investigation from P.W.11 on 03.10.1998. During the course of investigation, he examined some of the witnesses, seized some blood stained earth and sample earth from the spot, seized one tooth and one dhoti of the deceased, arrested the accused persons and forwarded them to the Court and thereafter handed over the charge of investigation to his successor Niranjan Mishra (P.W.12). P.W.12 after taking charge of investigation from P.W.11 examined some witnesses, produced the iron rod before the Medical Officer for his opinion sent the seized articles to the R.F.S.L. for chemical examination and on completion of investigation filed charge-sheet against the accused persons under Sections 302/323/34 IPC. P.W.10 is the police official who carried the dead body of the deceased for postmortem examination. He proved the command certificate (Ext.14). D.W.1 is Dolko Beriha, who has been examined on behalf of the defence. His evidence goes to show that on the date of occurrence at about 4.00 p.m. Sidhe Bariha (accused), Srimukha Hati, Natabar Hati, Nishamani Bhoi, Krushna Bhoi and Sakhiram Hati took liquor in the house of Srimukha (deceased), quarrelled there and fought among themselves. Accused Sidhe wanted to pacify the quarrel and subside the fighting. 7. On careful scrutiny of the evidence this Court opines that there is no material to disbelieve the evidence of P.Ws. 2 and 3, the ocular witnesses. Their evidence is very clear and cogent with regard to the role played by each of the appellants. Accused Sidhe wanted to pacify the quarrel and subside the fighting. 7. On careful scrutiny of the evidence this Court opines that there is no material to disbelieve the evidence of P.Ws. 2 and 3, the ocular witnesses. Their evidence is very clear and cogent with regard to the role played by each of the appellants. P.W.4 and 5, the other ocular witnesses also corroborated the testimony of P.Ws. 2 and 3. There is no material to discard the evidence of ocular witnesses. P.W.1 the son of the deceased, is a post occurrence witness who came to the spot after hearing about the assault by the accused persons. He was intimated by his mother, sister and co-villagers about the occurrence and thereafter he lodged FIR (Ext.1). The FIR corroborated the testimony of the ocular witnesses. P.W.7 is the doctor, who conducted autopsy over the dead body of the deceased and found grievous injuries on the vital part of the body, which corroborated the testimony of ocular witnesses. P.W.9 is another doctor who treated the deceased first and found four injuries, some of which were on the vital parts of the body of the deceased. From P.Ws. 7 and 9 nothing has been elicited by the defence to demolish their evidence. From P.W.2's evidence it reveals that when appellant Saheb asked the deceased whether he had quarrelled with his father, the deceased replied in the affirmative. P.W.4 admitted in his cross-examination that before the occurrence there was a quarrel between the deceased and appellant Sidhe Bariha. P.Ws. 3 and 5 have specifically stated that all the accused-appellants were holding lathi and iron rod except appellant no.2 and that they had not assaulted directly to the head of the deceased. But from the evidence of the ocular witnesses it reveals that accused Saheb did not give direct blow to the head of the deceased. P.W.5 also in her cross-examination admitted that Sidhe had taken liquor in her house along with her husband and quarrelled with him. 8. From the analysis of evidence made above it is crystal clear that the accused persons came in a body to make some query why the deceased quarrelled with appellant no1. The medical report of P.W.7 reveals that one blow was given and injury no.6 situated on parietal low of left side. 8. From the analysis of evidence made above it is crystal clear that the accused persons came in a body to make some query why the deceased quarrelled with appellant no1. The medical report of P.W.7 reveals that one blow was given and injury no.6 situated on parietal low of left side. P.W.9 who treated the deceased first found one bruise over the bridge of nose measuring 2" x 2". From the above oral and medical evidence, it is presumed that the appellants had no intention to kill the deceased. No overtact has been attributed to appellant no.2-Parbati Bariha. It is not possible to arrive at a definite conclusion by taking aid of Section 34, IPC that appellant no.2 herein could be convicted u/s 302, IPC. Therefore, this Court acquits appellant, no.2 of the charge u/s 302, IPC. The conviction of other appellants, namely, Sidhe Bariha, Saheb Bariha and Udayaram Bariha u/s 302/34, IPC is converted to Section 304 Part-I, IPC and each of them is sentenced to undergo imprisonment for ten years. The conviction and sentence of appellant no.4-Udayaram Bariha u/s 323, IPC is confirmed. It is stated by Mr. Acharya that appellants Sidhe Bariha, Saheb Bariha and Udayaram Bariha are in custody and by now have completed more than twelve years. If that be so, the appellants Sidhe Bariha, Saheb Bariha and Udayaram Bariha be set at liberty forthwith, unless their detention is required otherwise. The Jail Criminal Appeal is allowed in part. S.K. Mishra, J. 9. I agree. Final Result : Allowed