JUDGMENT 1. This appeal is directed against the judgment and order dated 21.2.2002 passed by the Ad hoc Addl. Sessions Judge, Sundargarh, in Sessions Trial No.245/18 of 2000. 2. Two accused persons namely, Gangadhar Bariha and Lingaraj Bariha faced trial and both of them were convicted for commission of offence under Section 302/34 of the Indian Penal Code (in short, 'I.P.C.') and were also sentenced to imprisonment for life. During the pendency of the appeal, the appellant No.1, Gangadhar Bariha expired and, therefore, by order dated 8.4.2010 this Court has directed that the appeal so far as Gangadhar Bariha (Appellant No.1) is concerned stands abated. Due to typographical mistake, in place of Appellant No.1 it has been wrongly typed as Appellant No.2. 3. The case of the prosecution is that on 27.6.2000 at about 8.00 P.M. there was a quarrel between the deceased-appellant No.1, Gangadhar Bariha and the deceased Hemaraj Bariha who happens to be the younger brother of Gangadhar Bariha. The deceased dealt a slap to Gangadhar, as a result of which Gangadhar called his son Appellant No.2, Lingaraj Bariha. Lingaraj who was inside the house came out with a Bhujali and both the father and son started chasing the deceased. Gangadhar assaulted the deceased by means of a lathi on his head and other parts of the body, as a result of which the deceased fell down on the ground. Appellant No.2, Lingaraj, thereafter stabbed the deceased on his belly by means of the Bhujali, as a result of which the intestine came out. P.W.1, Puspa Bariha who is the wife of the deceased and Dhaneswar Bariha another younger brother of Gangadhar came to the spot but the accused persons fled away. The deceased was brought to the District Headquarters Hospital, Sundargarh but he succumbed to the injuries in the night. P.W.1 submitted a written report at about 11.00 P.M. before the I.I.C. Sadar police station, Sundargarh and a case was registered for commission of offence under Section 302/34, I.P.C. On completion of investigation, charge sheet was submitted for commission of the said offence. 4. In course of trial, prosecution in order to bring home the charge examined fourteen witnesses. Out of the said witnesses, P.W.1 is the wife of the deceased and the informant. P.W.3 is the younger brother of the deceased and the appellant Gangadhar and also an eye witness to the occurrence. 4. In course of trial, prosecution in order to bring home the charge examined fourteen witnesses. Out of the said witnesses, P.W.1 is the wife of the deceased and the informant. P.W.3 is the younger brother of the deceased and the appellant Gangadhar and also an eye witness to the occurrence. P.W.4 is the wife of P.W.3 and she was examined as an eye witness to the occurrence. P.W.2, P.W.5, P.W.6 and P.W.7 are the post occurrence witnesses. P.W.8 escorted the appellants to the Doctor for collection of nail clippings and blood samples whereas P.W.9 is a witness to the seizure. P.W.11 conducted the post mortem examination. P.W.12 and P.W.14 are the Investigating Officers and P.W.13 is the police constable who witnessed the seizure of the wearing apparels of the deceased. The plea of defence was denial and accordingly no witnesses was examined on behalf of the defence. 5. The Trial Court relying on the evidence of eye witnesses found both the accused persons guilty of the charge and convicted them thereunder. 6. Learned counsel appearing for the appellants assailed the impugned judgment on the ground that though P.W.3 and P.W.4 were examined as eye witnesses to the occurrence, P.W.4 having admitted not to have seen the occurrence entirely, cannot be treated as an eye witness to the occurrence. It was also submitted by the learned counsel appearing for the appellants that P.W4 having not seen the entire occurrence, much reliance cannot also be placed on the evidence of P.W.3 who is stated to be accompanying P.W.4. The only other evidence is that of P.W.1 who came to the spot after the assault was over According to the learned counsel for the appellants there is no eye witness to the occurrence and the prosecution also do not complete a chain of circumstances so as to come to a conclusion that it is the appellants who committed the murder of the deceased. 7. Learned counsel for the State placed reliance on the evidence of P.W.3, the younger brother of the deceased and the Appellant No.1 as well as the medical report and submitted that the evidence of P.W.3 fully corroborates the medical evidence. Learned counsel for the State also drew attention of the Court to the evidence of P.W.1 and submitted that the deceased had made an oral dying declaration before the P.W.1 implicating both the appellants. 8. Learned counsel for the State also drew attention of the Court to the evidence of P.W.1 and submitted that the deceased had made an oral dying declaration before the P.W.1 implicating both the appellants. 8. On a careful scrutiny of the evidence adduced by the prosecution, we find that P.W.1, the informant, is the wife of the deceased and by the time she reached the spot the deceased had already been assaulted. However, this witness in her evidence has stated that after arriving at the spot her husband disclosed before her that the Appellant No.1 assaulted him with a lathi and Appellant No.2 stabbed him by means of Bhujali. There is nothing in the cross-examination to disbelieve this part of the statement of P.W.1. P.W.3 is the younger brother of the deceased as well as Appellant No.1. He in his deposition has stated that on 27.6.2000 at about 6. P.M. the deceased returned from the work and had a quarrel with Appellant No.1. After some time the deceased came to his house and asked him as to why Appellant No.1 is threatening his family. At about 8.00 P.M. the Appellant No.1 and his wife were returning from the market. At that time, the deceased came to a tube-well where again there was a quarrel between the deceased and Appellant No.1. The deceased dealt a slap to Appellant No.1. When appellant No.1 shouted for help, Appellant No.2 came running to the place armed with a Bhujali. Thereafter both the appellants chased the deceased and Appellant No.1 assaulted the deceased by means of a lathi on his head and other parts of the body. When the deceased fell down, Appellant No.1 stabbed him on his belly by means of a Bhujali as a result of which the intestine came out. Though P.W.4, the wife of P.W.3 was examined as an eye witness to the occurrence, in her cross-examination she has stated that she had not seen the actual assault by Appellant No.1 and Appellant No.2. She had only seen both the appellants chasing the deceased being armed with lathi and Bhujali. Though P.W.4, the wife of P.W.3 was examined as an eye witness to the occurrence, in her cross-examination she has stated that she had not seen the actual assault by Appellant No.1 and Appellant No.2. She had only seen both the appellants chasing the deceased being armed with lathi and Bhujali. Though we find much force in the submission of the learned counsel appearing for the appellants and that P.W.4 is not an eye witness to the entire occurrence, but her statement that she had seen both the appellants chasing the, deceased being armed with lathi and Bhujali, gets corroboration from the evidence of P.W.3. P. W.11 is the Doctor who conducted the post mortem examination. He found one incised wound of 4 long cutting, the skin, muscle and peritorium of the abdomen and apart from other multiple cut injuries there were other cut injuries. He opined that the cause of death was due to profuse bleeding because of the injury in the intestine and liver resulting in shock. He was also of the opinion that the injuries were sufficient to cause death in ordinary course of nature. On police requisition he examined the Bhujali (M.O.1) and opined that the injuries found on the body of the deceased could be caused by that weapon. 9. On analysis of the evidence of P.W.1, P.W3, P.W.4 and P.W11, we find that the deceased died a homicidal death. It is also found that on the date of occurrence there was a quarrel between the deceased and the Appellant No.1 at about 6.00 P.M. There was again another quarrel between them at about 8.00 P.M. near the tube-well. In course of the second quarrel, the deceased dealt a slap on the Appellant No.1. When the Appellant No.1 shouted for help his son Appellant No.2 came to the spot with a Bhujali and both of them started chasing the deceased. Thereafter Appellant No.1 is alleged to have assaulted the deceased by means of a lathi and when the deceased fell down Appellant No.2 is alleged to have assaulted the deceased on his belly by means of a Bhujali. The evidence of P.W.3 in this regard gets corroboration from the evidence of P.W.11, the Doctor, who conducted the postmortem examination. Thereafter Appellant No.1 is alleged to have assaulted the deceased by means of a lathi and when the deceased fell down Appellant No.2 is alleged to have assaulted the deceased on his belly by means of a Bhujali. The evidence of P.W.3 in this regard gets corroboration from the evidence of P.W.11, the Doctor, who conducted the postmortem examination. Apart from the above, the statement of P.W.1 that immediately after she arrived at the spot the deceased disclosed before her to have been assaulted by both the appellants also stands uncontroverted. However, the entire incident of assault appears to have taken place immediately after the deceased assaulted the Appellant No.1 near the tube-well. It further appears from the evidence that there was long standing dispute between the family of the deceased and the appellants and on the date of occurrence there were two rounds of quarrel between the appellants and the deceased. In course of the second quarrel when the deceased assaulted the Appellant No.1, he shouted for help and in a fit of anger, both the appellants chased the deceased and assaulted him by means of the weapons held by each of them. The entire incident having taken place in a fit of anger and on the spur of the moment, we are of the view that the appellants should have been convicted for the commission of offence under Section 304 Part-II of the I.P.C. instead of under Section 302/34, I.P.C. Reference in this regard may be made to a decision of this Court in the case of Krushna Chandra Sahu v. State of Orissa, reported in 1984(2) Crimes 400 , Biswamitra Karan and others v. State of Orissa, reported in 2002 (Supp.) OLR-119 and Madkami Irma and another v. State of Orissa, reported in 2004 (Supp.) OLR 110. 10. For the reasons state above, we set aside the impugned judgment convicting the appellants for commission of offence under Section 302/34 I.P.C. and allow the appeal in part. For the reasons stated, both the appellants are convicted for commission of offence under Section 304 Part-II, I.P.C. and each of them are sentenced to imprisonment for seven years. Appellant No.1 having died the appeal has abated. So far as Appellant No.2, Lingaraj Bariha, is concerned, it is stated at the Bar that after serving for about ten years, he has been released on bail. Appellant No.1 having died the appeal has abated. So far as Appellant No.2, Lingaraj Bariha, is concerned, it is stated at the Bar that after serving for about ten years, he has been released on bail. If that be so, the sentence imposed by this Court be set-off against the period already served. Appeal allowed in part.