JUDGMENT : VINOD PRASAD, J. Appellant Tikeram Bag with five of his other socio criminises including his three uterine sibling brothers, namely, Bholanath Bag, Radheyshayam Bag @ Radhe and Raju Bag with two others Debeswar Bag and Gobinda Bag, were prosecuted for offences uls. 302134, 294134 and 323134 relating to police station Boden district Nuapada by Additional Sessions Judge, in C.T. Case NO.5 of 2010, The State versus Tikeram Bag and others and since the appellant only was adjudged guilty of offence u/s. 302 I. P.C. and was convicted and sentenced to life imprisonment and to pay a fine of Rs. 10000/- only and in default of payment of fine to serve additional 1 year imprisonment vide impugned judgment and order dated 28.03.2011, that he has preferred instant appeal challenging his aforesaid conviction and sentence. Albeit needless to mention but recapitulated here is the fact that rest of his associates, who were members of unlawful assembly, were acquitted by the learned trial Judge which opinion of acquittal has now attained finality as not being challenged from any quarter." 2. Occurrence in question, as was unfurled during the trial by the fact witnesses had occurfed in village Dahanapali, P.S.-Boden district Nuapada where a Banyan tree is situated at Baragachha Chhak by the east side, at the north bend of a east - west village metalled road. Banyan tree is encircled by a cemented brick pedestal and the incident in question occurred near this Banyan tree on the metalled road. House of Balkrishna Bhoi, the informant/P.W.1 and his father Nityananda Bhoi, the deceased in the incident, liesa little more than 100 meters from the tree in Bhoi Pada, while house of the appellant is situated about 150 meters in Harijan Pada. Nearby also lies a primary school at a distance of 50 meters. From near the place of the incident another road goes to the village Takkersor. 3. Both the rival inimical sides are residents of the same village Dahanapali and genealogy of the prosecution sides reveals that one Chakradhar Bhoi of that village had three sons Nityananda (deceased) Bhardwaj Bhoi/P.W. 3 and one Narsingh Bhoi (injured in the incident but not examined by the prosecution). Informant Balkrishan Bhoi/P.W. 1 and Radhakrishna Bhoi/P.W. 4 are the sons of the deceased Nitaynanada, where as Gharrnani Bhoi/P. W. 10 is the wife of the informant/P. W. 1. Informant Balkrishan Bhoi/P.W. 1 and Radhakrishna Bhoi/P.W. 4 are the sons of the deceased Nitaynanada, where as Gharrnani Bhoi/P. W. 10 is the wife of the informant/P. W. 1. So also it transpires that one Mangal Bag of the same village Dahanapali had four sons Tikeram (appellant), Bholanath, Radheyshayam @ Radhe, and Raju (all were accused, but since acquitted). It is not decipherable from testimonies of witnesses as to whether other two acquitted accused Debeswar Bag and Gobinda Bag belonged to the same family tree or not but it is apparently unambiguous, from their statements u/s. 313 of the Code, that they were also co villagers. 4. Monday (24.8.2009) was the festive occasion of Nuakhai, and to rejoice the feast of that day, the villagers gathered under the Banyan tree on Tuesday the 25.08.2009. When at 2 p.m. two acquitted accused Debeswar and Gobinda, in an inebriated statp engaged themselves in a triadic obscene altercation with Raddhakrishna/P.W. 4 and Bharadwaj Bhoil P.W. 3 which was desisted by P.W. 4. and resultantly both P.W. 4 and P.W. 3 were assaulted by the abusers. Verbal commotion attracted Narsingh Bhoi at the incident scene but he was also not spared and was inflicted with injuries. Deceased also arrived at the spot hearing the sputtering and commotion and intervened in scuffle and tried to separate both the aforesaid accused. Meanwhile rest of the four accused including-the appellant, who alone was armed with a 'GEDA' (a club], came at the incident spot and the appellant gave a single GEDA blow on the head of Nityananada (deceased) who, sustaining profuse bleeding head injury squatted on the ground. Thereafter, accused left the incident scene. Informant and the injured relatives lifted Nityananada (deceased) to their house there they tried to administer him water, but he was unable to drink Sensing that Nityananada had lost his life because of the inflicted injury, the informant/P.W. I dictated incident FIR to a co-villager Rajat Kumar Patnaik/P.W. 9 and after verifying its contents signed on it and after tramping to a distance of 13 K.Ms. to the police station Boden he lodged his FIR (Ext. 1) same day at 3.30 p.m. just after one and half hours which was registered by Akshaya Kumar Dhadei/P.W.11, O.I.C. Boden as Crime No. 56 of 2009, u/s. 294/323/302/34 I.P.C. 5. to the police station Boden he lodged his FIR (Ext. 1) same day at 3.30 p.m. just after one and half hours which was registered by Akshaya Kumar Dhadei/P.W.11, O.I.C. Boden as Crime No. 56 of 2009, u/s. 294/323/302/34 I.P.C. 5. Investigation was set a foot immediately by the 1.0./ P.W. 11, who after registering formal FIR Ext. 1/4, examined the informant, deputed constable no. 203 H. Mahananda to guard the cadaver and then sketched site plan Ext. 13. Appointing witnesses inquest on the dead body was conducted and inquest memo Ext.3 was slated and thereafter the corpse was dispatched to P.H.C. Boden for post mortem examination along with dead body chalan Ext. 14. On production by the informant 1 P.W. 1 branch of a Ankal tree, which was the weapon of assault, M.O.I, was seized ,vide seizure memo Ext.2. Blood stained and sample earth was collected as per Ext.4. -Thereafter, accused appellant and Dabeswar Bag and Gobinda Bag were arrested and their attires were seized vide seizure memos Ext. 5, 6 & 7. Query regarding weapon of offence was made vide Ext. 10 and subsequent to autopsy, on production by the constable, clothes of the deceased were seized vide seizure list Ext. 15. Injured were got medically examined and thereafter rest of the accused were arrested. Nail clippings of accused were seized vide Ext. 8. Expert opinion from R.F.S.L. Berhampur was called for vide Ext.16 and after receipt, the same is proved as Ext. 17. Completing investigation all the accused were charge sheeted for the registered crimes to stand their trial. 6. Against the charge sheeted accused G.R. Case No. 37 was registered before J.M.F.C., Khariar, who finding offence prosecutable by Sessions Court committed accused case to the Sessions Court for trial vide his committal order dated 08.01.2010 and before the Session's court it was registered as C.T. 5 of 2010, State versus Tikeram Bag and others, and learned trial court/Additional Sessions Judge Nuapada charged all the accused with offences u/s. 302/34, 294/34 and 323/34 on 29.04.2010. Since all the accused denied those charges and pleaded not guilty and claimed be tried resultantly to establish their guilt and prove the charges their trial commenced. 7. Prosecution in its endeavour to establish the charge examined in all eleven witnesses out of whom, Balakrushna Bhoi, informant/P.W.1, Bharadwaj Bhoi/P.W.3, Radhakrushna Bhoi/P.W. 4 and Gharamani Bhoi/P.W. 10 are eyewitnesses. Since all the accused denied those charges and pleaded not guilty and claimed be tried resultantly to establish their guilt and prove the charges their trial commenced. 7. Prosecution in its endeavour to establish the charge examined in all eleven witnesses out of whom, Balakrushna Bhoi, informant/P.W.1, Bharadwaj Bhoi/P.W.3, Radhakrushna Bhoi/P.W. 4 and Gharamani Bhoi/P.W. 10 are eyewitnesses. Bhubaneswar Hans/P.W. 2 is a witness of inquest, whereas Bhosgar Salma/P.W. 5 and Hrudaya Mahanandare two police constables. Dr. Smruti Ranjan Samal/P.W. 7 is the autopsy doctor. Rajat KumarPattnaik/P.W. 9 is the scribe of the FIR and Braja Kishore Duria/P.W. 8 is the ASI of Boden P.S. and a seizure witness. Investigating Officer Akshaya Kumar Ghadei is P.W. 11. Prosecution had also tendered thirteen documentary evidences as exhibits. The weapon of assault MO-I and Lungi MO-II are two material exhibits. 8. The defence of all the accused was that of total denial and their false implication but they did not produce any oral or documentary evidence. 9. After vetting through the evidences, learned trial judge vide impugned judgment and order concluded that prosecution had remained unsuccessful in bringing home the charges qua rest of the accused except the appellant and, therefore, while acquitting all others it concluded that the prosecution has successfully been able to prove its case beyond all reasonable doubt against the appellant Tikeram Bag under Section 302 IPC and therefore, finding him guilty, convicted and sentenced him as stated herein above, which judgment has generated the present appeal. 10. In the aforesaid background that we have heard Mr. G.C. Swain, learned counsel for the appellant and Mr. J. Katikia, learned Additional Government Advocate for the respondent-State and. perused the record. 11. Sri Swain raised various points castigating the impugned judgment such as non-examination of any independent witness although present at the scene of the incident and hence prosecution case not being reliable, the weapon of assault (Geda) not containing any blood stain and, therefore, it not being the weapon of assault, weapon of assault not being shown to the Dr. Smruti Ranjan Samal/P.W. 7, while he was in the witness box which is fatal to the prosecution version, absence any previous enmity between rival factions so as to prompt the appellant to commit the crime etc. Smruti Ranjan Samal/P.W. 7, while he was in the witness box which is fatal to the prosecution version, absence any previous enmity between rival factions so as to prompt the appellant to commit the crime etc. but his penultimate contention remained only on the nature of crime committed by the appellant, which according to learned counsel will not traverse the ambit of section 304 part (I) I.P.C. and certainly not fall within the purview of intentional murder punishable u/s. 302 LP.C. and articulating his said contention reference was made to various depositions of fact witnesses as well as that of the doctor. Since the appellant is already in jail from the date of his arrest i.e., 27.08.2009, the concluding argument was that his crime be altered' to culpable homicide not amounting to murder and his sentence be reduced to the period of imprisonment already undergone considering palliative circumstances of his not having' any criminal history and the incident occurring at the spur of the moment in the midst of a scuffle and only a single blow only to the deceased being hurled with nobody else being assaulted nor repetition of blow was made. 12. Learned Additional Government Advocate submitting to the contrary contended that the prosecution has successfully anointed appellant's guilt, who had given the fatal blow to the deceased without any provocation and he being the sole perpetrator of the crime, the impugned judgment does not require any modification/alteration. Therefore, .the appeal be dismissed and conviction and sentence of the appellant be affirmed. 13. We have given our thoughtful considerations to the rival submission. Before deliberating over rivals contentions and scanning the submission raised, it will be appropriate to mention that there cannot be any dispute regarding the deceased being met with a homicidal death. According to the autopsy doctor, who had conducted P.M. examination on 26.08.2009 at 9.30 a.m., the deceased had sustained wound on scalp and his left parietal bone had fractured. He had also sustained another abrasion on upper eye lid left side, which injury is simple and insignificant and consequently deceased had sustained only a single fatal injury. His body was stout, pupil fixed, eyes closed and teeth locked. On internal dissection, doctor had found intra-carnal haemorrhage on left parietal region. Lungs of both sides were congested and 24 to 72 hours elapsed since the deceased had demised. His body was stout, pupil fixed, eyes closed and teeth locked. On internal dissection, doctor had found intra-carnal haemorrhage on left parietal region. Lungs of both sides were congested and 24 to 72 hours elapsed since the deceased had demised. Cause of death was due to syncope caused by injury on head which had led to intra-cranial haemorrage. Autopsy report of the deceased is Ext. 9. Regarding weapon of assault MO~I, the doctor vide Ext. 1 0 had opined that the same could have caused the injury sustained by the deceased. During cross-examination, the defence has not at all challenged findings recorded by the doctor in the autopsy) examination report Ext.9 and thus, there is little or no doubt in opining that the deceased met with a homicidal death by infliction of a single injury on the head resulting in fracture of his left temporal bone. This being the position, the only question remains to be adjudicated is, as to whether the appellant had participated in the crime and had inflicted that injury or not? Examining the said aspects, it is manifest from the evidence of the eyewitnesses, corroborated by the evidence of the doctor that the appellant was the sole accused, who was armed with a weapon during the incident and it was he, who had given a single blow on the head of the deceased. Two injured witnesses, namely, Bharadwaj Bhoi/P.W. 3 and Radha Krushna Bhoi/P.W. 4 have clearly named the appellant as the sole inflictor of the injury. These injured witnesses were also medically examined on the same day i.e., 26.08.2009 by P.W. 7 Bharadwaj Bhoi/P.W. 3 had sustained the following injuries:- (i) Two bruises of size 1 cm x 1 cm on both the legs. (ii) One bruise of size 1 cm x 1 cm on the middle of the chest. Both the aforesaid injuries were simple in nature and were caused by hard and blunt object. Injury report of Bharadwaj Bhoi is Ext.11. Radha Krushna Bhoi/P.W. 4 had no visible external injury and his medical examination report is Ext. 12. Presence of these two witnesses at the scene of the incident could not be disputed at all. No suggestion has been given which can dislodge their testimonies. Injury report of Bharadwaj Bhoi is Ext.11. Radha Krushna Bhoi/P.W. 4 had no visible external injury and his medical examination report is Ext. 12. Presence of these two witnesses at the scene of the incident could not be disputed at all. No suggestion has been given which can dislodge their testimonies. The informant has also corroborated the statement of the injured witnesses and therefore, the concluding residue is that the appellant was one of the participants in the incident and had caused injury to the deceased. Gharamani Bhoi/P.W. 10, who is the wife of the informant, has also convincingly corroborated the three earlier fact witnesses and had anointed role to the appellant of giving a single blow to the deceased. There was no occasion for all these persons to make a false story against the appellant of his being the sole inflictor of the injury. In such a view, prosecution has successfully established the case of participation of the appellant in the incident and in giving a single blow on the head of the deceased by a Geda. 14. Now, we advert to the contention as to whether the guilt of the appellant falls within the ambit of Section 302, I.P.C. or it will be only under Section 304, Part-I, I.P.C. of culpable homicide not amounting to murder. The circumstances in this connection tendered during the trial has got mollifying evidences to indicate that at no point of time the appellant had any intention to commit murder of the deceased. His crime therefore, will not fall within the purview of Section 302, I.P.C. and we hereby proceed to register the evidences, which support our said conclusion•. Informant Bala Krushna Bhoi/P.W. 1 in his examination in chief has clearly stated that the incident started between Oebeswar and Gobinda by hurling obscene words at Radha Krushna and Bharadwaj in a state of intoxication, which was objected to by P.W. 4 and then both the accused persons assaulted P.W. 3 as well as P.W. 4. Narasingh Bhoi, a paternal uncle of the informant, although arrived at the incidence scene, he was not assaulted by the appellant, but by two acquitted accused Oebeswar and Gobinda. It was at that moment that the deceased had arrived at the spot after hearing the commotion and he intervened into the said incident and tried to separate both the aforesaid Debeswar and Gobinda. It was at that moment that the deceased had arrived at the spot after hearing the commotion and he intervened into the said incident and tried to separate both the aforesaid Debeswar and Gobinda. At this point of time, according to the informant P.W. 1, the appellant with rest of his brothers, namely, Bholanath, Radheshyam and Raju came to the scene of the incident and the appellant is alleged to have inflicted a single blow on the head of the deceased causing' him profuse bleeding injury. During cross-examination, the informant has deposed that the incident had occurred on the metal road near a banyan tree and his specific statement is "At the time of the occurrence, there was a huge gathering of the villagers. The entire occurrence had taken place near the Banyan tree. But due to tussle of the parties, there was some movement. By the time the accused persons namely Tikeram, Bholanath, Radheshyam and Raju came to the spot, some outsiders had already reached to the spot but they were witnessing the occurrence standing at a little distance." Such a testimony by the informant clearly indicates that the appellant had arrived at the scene of the incident when many other people had gathered and the incident was already in the offing and both the sides were engaged in a brawl. In such a view, when a single blow was inflicted by the appellant without repeating the same, it is difficult to conclusively conclude that the appellant had intended to commit the murder of the deceased. It is quite clear that to stop the fight, a single blow was given to the deceased, which unfortunately proved fatal. No other blow was repeated either on the deceased or anybody else. The Geda was also left at the scene of the incident and was not taken away by the appellant, who in the natural course of event, had he, possessed intention to commit murder; would have taken it along with him while escaping from the spot. The Geda was taken away by the informant to his house, who had handed it over it to the police. Chemical examiner's report does not indicate any blood stain on the said Geda. The Geda was taken away by the informant to his house, who had handed it over it to the police. Chemical examiner's report does not indicate any blood stain on the said Geda. Thus the overall picture which emerges from such facts and evidences is that the appellant had no intention to commit murder of the deceased at all and he only inflicted a single blow at the spur of the moment in the midst of the quarrel arriving at the scene of the incident much later. 15. Bharadwaj Bhoi/P.W.3, another eyewitness also divulged somewhat diluting the crime evidence. His examination in chief reads "On the day of occurrence at about 2.00 to 2.30 P.M. I saw a quarrel going on in between Radhakrushna and accused Debeswar and went near the spot i.e. Baragachha Chhak. When I intervened and tried to separate them, accused Debeswar assaulted me on my chest and left knee by means of his hand as a result I fell down on the ground. At that time my elder brother Nrusinha came to the spot and accused Debeswar and Gobinda assaulted him. Then deceased Nityananda came to the spot and intervened and tried to separate accused Debeswar and Gobinda. At that time accused Tikeram came with a Geda and gave a blow on the head of Nityananda by means of that Geda. After the said assault accused Bholanath, Radheshyam and Raju c'ame to the spot and they were abusing us in obscene words like MAGHYENKU MARIDEMU." Such a narration makes it manifest that appellant 'had arrived at the incident scene subsequent to the genesis of the incident and had given a single blow. Thus, how the incident started is not known. It may be because of the fault of the prosecution side. Genesis of the incident seems to be clouded with mystery as hurling of abusive words by the two accused in a tizzy condition has not been satisfactorily established and acquittal of those two accused supports such a conclusion. A single blow at the spur of the moment by the appellant who arrived at the incident scene much later cannot be taken to be a clinching evidence anointing his guilt under Section 302, I.P.C. and therefore, the guilt of the appellant is. A single blow at the spur of the moment by the appellant who arrived at the incident scene much later cannot be taken to be a clinching evidence anointing his guilt under Section 302, I.P.C. and therefore, the guilt of the appellant is. to fall within the Mischief of Section 304, Part-I and not Section 302, I.P.C. In the cross-examination nothing has been got elicited from this witness so as to aggravate the crime dragging it within the ambit of murder. Significant to note it that in cross-examination P.W. 3 has stated that "When I reached at the spot accused Oebeswar and Radhakrushna (injured) were holding each other and accused Oebeswar made Radhakrushna fall on the ground on the edge of the concrete road. I cannot say the duration of the entire occurrence. When accused Oebeswar assaulted me I fell down and I got a shock.' Thus, it is clearly manifest that the incident of assault had preceded by a tussle and jostling between both the factions. In such an event a single blow by a Geda by the appellant will not bring the case within the scope of murder punishable under 302, I.P.C. 16. Likewise from the depositions of P.W. 4 also it does not emerges that the appellant had any intention to commit murder. In his examination in chief P.W. 4 has deposed that "At that time my father Nityananda came to the spot and he tried to separate the said two accused persons. Then accused Tikeram came to the spot by holding a Geda and assaulted on the head of my father by means of that Geda as a result, my father sustained bleeding injury on his head and fell down on the ground." Thus, the unambiguous story divulged during the trial was that the appellant had arrived at the scene of the incident subsequent to the jostling and muscle flexing by both the side and while the deceased was already a participant in the incident that the appellant is alleged to have inflicted a single blow. In such a view it is very difficult to convincingly opine that the accused had an intention to commit murder of the deceased. 17. At this juncture, we would like to advert to the impugned judgment and the view slated by the learned trial judge. In such a view it is very difficult to convincingly opine that the accused had an intention to commit murder of the deceased. 17. At this juncture, we would like to advert to the impugned judgment and the view slated by the learned trial judge. We are of the opinion that the learned trial judge has not paid due• attention to the evidences referred to above and in a very slipshod manner by pedantically accepting the prosecution case has convicted the appellant for the charge of murder while acquitting all other co-accused persons of all the crime. We express our displeasure over such an analysis by the learned trial Judge also note here that the trial Judge has committed apparently a manifest error in charging six appellants with the offence of murder with the aid of Section 34, I.P.C. If the learned trial judge was framing charge against six of the accused, we are unable to fathom any viable reason as to why he has applied Section 34, I. P.C. instead of Section 149, I.P.C. It was a clear case of forming of an unlawful assembly of six persons and therefore, when the trial Judge was charging all the accused with identical offences, he should have framed the charges under Sections 302/149, 294/149 and 323/149, I.P.C. •instead of applying Section 34, I.P.C. The entire analysis by the trial Judge does not indicate that he was interested in separating grain from the chaff and to exhume the real truth. Appellant was not at the scene of the incident from the very beginning. The genesis of the incident is unknown and lies in mystery as held herein above. A single blow by Geda in the midst of the muscle flexing is all what has been alleged against the appellant. All the significant aspects completely escaped the notice of the learned trial judge and therefore, his opinion qua the crime committed by the appellant is fallacious, incipient and wholly unacceptable. In our opinion, the appellant can be held to be guilty only under Section 304, Part-I, I.P.C. and not under Section 302, I.P.C. No other point was deliberated or urged by the learned counsel for the appellant. 18. In view of our aforesaid analysis, we allow the appeal in part. In our opinion, the appellant can be held to be guilty only under Section 304, Part-I, I.P.C. and not under Section 302, I.P.C. No other point was deliberated or urged by the learned counsel for the appellant. 18. In view of our aforesaid analysis, we allow the appeal in part. Conviction of the appellant for offence under Section 302, I.P.C. is hereby set aside and instead the appellant is convicted under Section 304 Part (I), I. P.C . 19. Now adverting to the question of sentence, we find that the incident had occurred on 25.08.2009. Six years have gone by. Appellant was arrested on 27.08.2009 and since that date he is in jail. His brothers were in peril and intervening in the quarrel, he had given a single blow on the head of the deceased, when both parties were engaged in muscle flexing with each other and the deceased was already an intervener. In such a view, the period of incarceration undergone by the appellant, in our view, would serve the ends of justice as nowhere it has been brought on record that the appellant had any criminal proclivity or any crime background. It has also not been shown to us that the appellant is an outlaw and was a dangerous person. He has got a family and the incident had occurred at the spur of the moment and the blow was given out of sheer anxiety and anger. 20. Epilogue of the discussion is that the appeal is allowed in part. Appellant's conviction under Section 302, I.P.C. and sentence of life imprisonment with fine of RS.1 0,000/- (Rupees ten thousand) is hereby scored out and instead he is convicted for offence under Section 304, Part (I), I.P.C. and is sentenced to the period of imprisonment already undergone by him. The appellant is in jail. He is directed to be set at liberty forthwith unless and until he is required in any other crime. 21. The appeal is partly allowed as above. 22. Let the trial Judge be informed accordingly. I agree.