JUDGMENT : Misra, J. - Shankar Padhan (p.w.1) of village Kanteikoili within the police station of Dhenkanal Sadar, lodged the F.I.R. (ext. 1) at 8 a.m. on 4-4-1965 alleging that at about 6.30 p.m. on 3-4-1965 his brother Urdhab Padban was murdered by accused Ajati Padhan. At about 6 p.m. on the date of occurrence, p.W.1 had gone to some other Sahi of the village and before he left, he found the accused thatching his own house and the Deceased sitting on his own verandah. When p.w.1 returned about half an hour after he saw Urdhab lying dead with severe injuries and p.w.2 (widow of the deceased) weeping by his side. P.w.2 stated to him that when her husband asked for some paddy, which had been kept in the custody of the accused, the latter assaulted the deceased on the head and ran away. P.w.1 immediately informed the Sarpanch (p.w.12) of village Gobindapur, who directed him to go to the police station. On return of the Sarpanch, p.w.1 kept watch over the dead body in the night and went to the police station next day early morning to lodge the F.I.R.. There was previous dispute between the accused and the deceased over some land belonging to Nabin Padhan, father-in-law of the accused. The deceased was in possession of some land after the death of Nabin Padban. Over this there was some punchayati and it bad been settled that the paddy of the year would remain in the custody of the accused until fin!, l settlement when distribution of the paddy would take effect. 2. The defence is one of complete denial. The plea taken by the accused is that he had no dispute with the deceased and that he did not kill him. 3. The learned Additional Sessions Judge came to the conclusion that the accused murdered the deceased as alleged by the prosecution. He convicted the accused u/s 302, Indian Penal Code and imposed sentence of death. A reference has been made by him u/s 374, Code of Criminal Procedure for confirmation of the sentence of death. The accused has filed the criminal appeal against the order of conviction and sentence. 4. There is no dispute that the death of Urdhab Padhan was homicidal. The doctor (p.w.8) made the post-mortem examination on 4-4-1965 at 5 p.m. and found the following external injuries: 1. The accused has filed the criminal appeal against the order of conviction and sentence. 4. There is no dispute that the death of Urdhab Padhan was homicidal. The doctor (p.w.8) made the post-mortem examination on 4-4-1965 at 5 p.m. and found the following external injuries: 1. One incised injury 11/2" x 1' bone deep over the left temporal region at the lateral angle on the left eye. 2. One indistinct bruise over the left side of the, chest at its middle. On dissection the following internal injuries were found: 1. The temporal bone was fractured. 2. The membranes of the brain was torn. 3. The brain underneath the membrane were lacerated and hemorrhaged . On dissection of the second injury, the 4th left rib was found to be fractured. The pericardium o the left side was inflamed and lacerated. The left pleura and lungs were also lacerated. According to the doctor, each of the injuries 1 and 2 was sufficient by itself to cause the death in ordinary course of nature and the death must have been instantaneous. The medical evidence leads to the irresistible conclusion that the death was homicidal. 5. The only question for consideration is whether the accused murdered the deceased at 6-30 p. m. on 3-4-1965.P.ws.2, 3, 5 and 10 are the eye-witnesses. Usha Dei (p.w.2) is widow of the deceased. Janha Dei (p.w.3) is the brother's wife of the deceased. Bhabani Dei (p.w.5) is the daughter of p.w.1. Thus three of the eye-witnesses are very close relations of the deceased. It is accordingly contended that their evidence should not be accepted without strong corroboration. 6. We have carefully gone through the evidence of these three witnesses. All of them are ladies. P.w.3 stated that the accused inflicted several injuries on several parts of the deceased. P. Section 2. and 5, however do not state so their statements fit In with the medIcal eVIdence. We do not attach much importance to this discrepancy in the statement of p.w.3 from that of the other two witnesses and the medical evidence. All of them are consistent that when the deceased demanded some share of the paddy, which was in the custody of the deceased, for his maintenance, the accused attacked the deceased suddenly with the axe. All the three witnesses are rustic simple women folk. Nothing substantial has been elicited from their cross-examination to discredit their testimony. All of them are consistent that when the deceased demanded some share of the paddy, which was in the custody of the deceased, for his maintenance, the accused attacked the deceased suddenly with the axe. All the three witnesses are rustic simple women folk. Nothing substantial has been elicited from their cross-examination to discredit their testimony. The occurrence took place in the month of April before night fall in the village Danda. The murder was in the Danda in between the houses of the accused and the deceased. It is quite natural that p. ws. 2, 3 and 5 (the inmates of the house) could see the occurrence. Their evidence is corroborated by the statement of Krushna Pradhan (p.w.10), who is an independent witness. He stated Accused killed him (meaning the deceased). I saw the accused while he was running away after the commission of the murder. Accused was going away with a Tangia in his hand There is nothing in the judgment of the learned Additional Sessions Judge to indicate as to why he did not treat p.w.10 as an eye-witness. In his cross-examination he stated I can't say if the deceased was drunk at that time. I do not remember if I stated in the Committee Court that the deceased was drunk when he asked for paddy to the accused. I do not see the accused then. After half an hour I saw the accused running away. It might appear from this answer that p.w.10 did not actually Bee the murder but only saw the accused running away after the murder. The answer elicited in the cross-examination does not take away the effect of the clear statement made in examination-in-chief that the accused killed the deceased. Even assuming that he did not see the factum of murder but only the accused running away with the Tangia soon after the murder, his evidence would corroborate the evidence of the eyewitnesses that the accused murdered the deceased and ran away. It was contended that if the accused ran away from the village with the Tangia, the (M. Order 1.) could not have been recovered from the house of the accused, as the accused turned up in the village only at 10.30 a.m. next day and the Tangia had been seized by that time. There is no force in this argument. It was contended that if the accused ran away from the village with the Tangia, the (M. Order 1.) could not have been recovered from the house of the accused, as the accused turned up in the village only at 10.30 a.m. next day and the Tangia had been seized by that time. There is no force in this argument. It is not the prosecution case that a watch was given on the house of the accused and that the accused, after he ran away immediately after the murder, did not come back to his house during the intervening period. 7. Mr. Ray advanced the following contentions for not believing the eye-witnesses (i) The time of murder being before evening when most of the villagers were likely to assemble in the Danda, a la number of independent witnesses could have been available if the occurrence, as alleged by the prosecution was true. (ii) The investigation in this case was highly unsatisfactory inasmuch as no spot map has been prepared and the articles seized on 4.4.1965 were sent to the Chemical Examiner about a month after on 4-5-1975. (iii) The place of murder being only 4 miles from the police station, there was great delay in lodging the F.I.R. and the prosecution has not furnished any satisfactory explanation the delay. 8. None of these contentions appeals to us. Prosecution has examined for eye-witnesses. No question was put to any of these witnesses that other villagers had assembled in the Danda at the time of murder. It was also open to the defence to examine some of the villagers to say that they were present in the village Danda at about 6-30 p.m. on 3-4.1965 and that no occurrence, as alleged by the prosecution, took place at that at the place of murder. P.w.2 had stated that the wife, on and daughter of the accused were present in the house at the time of the murder. The accused could have examined them to say that there was no such occurrence. Defective investigation, by itself, is not a ground for throwing out the prosecution case and giving benefit of doubt to the accused. Mr. Ray failed to satisfy us as to how the nonpreparation of the spot map and the delay in sending the articles for chemical examination had affected the defence in his case. Defective investigation, by itself, is not a ground for throwing out the prosecution case and giving benefit of doubt to the accused. Mr. Ray failed to satisfy us as to how the nonpreparation of the spot map and the delay in sending the articles for chemical examination had affected the defence in his case. Doubtless there was some delay in lodging the F.I.R. as the police station is only at the distance of four miles from the place of murder. P.w.1, however, has given some explanation. He went to the Sarpanch of village Gobindapur and again to the Chowkidar Pita bas Naik (p.w.4) of village Gorapada. There is no material to show how far Gobindapur and Gorapada are from the village of occurrence. P.ws. 4 and 12 admitted that during night p.w.1 approached them. In the morning the chowkidar p.w.4 accompanied p.w.1 to the police station at the time of lodging the F.I.R.. On returning from p.ws.4 and 12 in the night, p.w.1 guarded the dead body and did not come to the thana in the night. P.w.1 could have straight come to the police station without approaching the Sarpanch and the Chowkidar. There is, however, no material on record to show why he did not follow that course. Though we cannot say that there was no delay in lodging the F.I.R., when the defence absolutely made no endeavour to elicit n cross-examination as to why delay occurred or that the delay could have been avoided, we cannot hold that the delay is fatal to the prosecution In'f the facts and circumstances of this case. We accordingly reject the various contentions advanced by Mr. Ray asking us to place reliance on the testimony of the eye-witnesses p.ws. 3, 5 and 10. We are satisfied that the accused murdered the deceased and the prosecution story, as narrated by p.w.2, is substantially true. The conviction u/s 302, Indian Penal Code is well founded. 9. Evidence is unassailable that there was dispute between the accused and the deceased over some land belonging to the father-in-law of the accused. The accused admitted in his statement before the committing Court and even after he succeeded in Court, the deceased and Chinta Padhan (p.w.11) cut away paddy from the land. The eye witnesses said that the deceased asked for portions of the paddy kept in the custody of the accused. The accused admitted in his statement before the committing Court and even after he succeeded in Court, the deceased and Chinta Padhan (p.w.11) cut away paddy from the land. The eye witnesses said that the deceased asked for portions of the paddy kept in the custody of the accused. The language used by the deceased must have been somewhat irritating and annoying to the accused. There seems to be no pre-meditation on the part of the accused and killed the deceased on the spur of the moment. Extreme penalty of death need not be imposed upon him. Ends of justice would be met if he is sentenced to imprisonment for life. 10. In the result, the Death Reference is discharged, the sentence of death is set aside and the accused is sentenced to imprisonment for life. Subject to the modification on the question of sentence the Criminal Appeal is dismissed. Ahmad, C.J. 11. I agree. Reference answered; Appeal dismissed Sentence modified. Final Result : Dismissed