K. P. MOHAPATRA,J. ( 1 ) THE appellant has challenged the Order passed by the learned Sessions Judge, Baripada, convicting him under S. 302, I. P. C. and sentencing to undergo imprisonment for life. ( 2 ) THE prosecution case revealed from the F. I. R. (Ext. 7) lodged by P. W. 3, father of deceased Ramesh was that on 28-3-1981 at about 4 p. m. a quarrel ensued between Judhisthira (accused since acquitted) and Narasingha for the former having made an obscene and objectionable remark against the latter. Deceased Ramesh who happened to be present intervened and requested them not to quarrel. But instead of keeping quiet, the appellant his brother Bipin (another accused) and Judhisthira got further enraged and assaulted deceased Ramesh. While Bipin assultled him by means of a ladhi on the left hand and on the back, the appellant uprooted a Sal Ballah and assaulted the deceased on the head as a result of which he was seriously injured. He was immediately removed to Baisingha hospital and F. I. R. (Ext. 7) was lodged at the Police Station on 29-3-1981 in the morning. His condition became critical and so he was removed to Ballasore District Headquarters Hospital where he died on 3-4-1981. The crime was investigated and charge-sheet was submitted against the appellant and two others namely, Bipin and Judhisthira for having committed an offence under S. 302/34. I. P. C. ( 3 ) THE plea of the appellant was that he did not assault the deceased. ( 4 ) THE learned Sessions Judge acquitted Judhisthira and convicted Bipin under S. 323, I. P. C. and sentenced him to undergo rigourous imprisonment for one month. This accused, it seems, has not appealed. The appellant, however, was convicted and sentenced under S. 302. I. P. C. ( 5 ) LEARNED counsel appearing for the appellant urged that the evidence of the eye witnesses to the occurrence was interested and unreliable and should have been rejected. Even if their evidence was accepted, it was a clear case of exercise of right of private defence by the appellant and so he is entitled to an acquittal. Learned Government Advocate, on the other hand, urged that the evidence of the eye witnesses was credible enough to be believed and so the order of conviction cannot be assailed. Even if their evidence was accepted, it was a clear case of exercise of right of private defence by the appellant and so he is entitled to an acquittal. Learned Government Advocate, on the other hand, urged that the evidence of the eye witnesses was credible enough to be believed and so the order of conviction cannot be assailed. ( 6 ) P. W. 4 conducted the postmortem examination of the dead body of deceased Ramesh and submitted his report (Ext. 1 ). He reported about the following serious injuries detected on dissection of the dead body :- (1) A wound of the size of 1" X " X scalp deep found on the middle of the head 1" behind the heir line placed anteroposterioily and haematoma under it. (2) A contusion of the size of 3" X 3" over the right parietal eminece and a haematoma under it. (3) A depressed fracture of the size 2" X 2" ffound on the right parietal bone. (4) Membrance of the right side was lacerated. (5) Intra-cerebral haemorrhgae was found in the brain substance. According to his opinion, the above injuries collectively were sufficient in the ordinary course of nature to have caused death of the deceased due to shock and haemorrhage. The injuries which were on the vital organs like the head and the brain could have been caused by hard and blunt weapon like a lathi or Sal Ballah. The evidence of the doctor leaves no room for doubt that the death of the deceased was not only homicidal, but was due to severe head injury which might have been caused by a lathi or a Sal Ballah. ( 7 ) NOW the question for consideration is whether the appellant had assaulted deceased Ramesh by a Sal Ballah on the head and caused the injuries which resulted in his death. In order to find out the complicity of the appellant in the crime it is necessary to screen the evidence of P. Ws. 1 and 2 who were eye witnesses. P. W. 1 is the brother-in-law of the deceased. He stated that on the date of occurrence which was a Saturday, at about 4 p. m. deceased Ramesh and Narasingha reached his house. Judhisthira also arrived there and enquired about the identity of Narasingha. The witness stated that he was an employee of the Railways. P. W. 1 is the brother-in-law of the deceased. He stated that on the date of occurrence which was a Saturday, at about 4 p. m. deceased Ramesh and Narasingha reached his house. Judhisthira also arrived there and enquired about the identity of Narasingha. The witness stated that he was an employee of the Railways. Judhisthira then passed an obscene and objectionable remark and enquired as to the proposal of his marriage with the sister of his wife as well as the sister of deceased Ramesh. The witness replied that as Judhisthira was suffering from laprosy there was no question of the marriage. At this a quarrel ensured between deceased Ramesh and Judhisthira. The witness them took Judhisthira and left him in his house. Subsequently, when the witness, Narasingha and Ramesh were jproceeding towards Tala Sahi they met Naranjan on the way who also accompanied them. Near lane crossing Judhisthira called out to bring a lathi as he was called "a leper' Bipin, brother of the appellant came running with a bamoo lathi and dealt two strokes on the left side, back and the left side arm of deceased Ramesh. When deceased Ramesh caught hold of the lathi and there was a scruffle, the appellant uprooted a Sal Ballah from nearby and dealt a blow by means of it on the head of deceased Ramesh causing a bleeding injury. He fell down on the ground and became senseless. He was first removed to Baisingha hospital and then to Balasore hospital where he expired four days later. P. W. 2 stated that on the date of occurrence, which was a Saturday, he found Judhisthira and deceased Ramesh quarrelling at about 4 p. m. He intervened and separated them. Judhisthira went away to his house. After about an hour he heard a hulla and went to the spot. He found that in front of the house of the appellant, Ramesh and Bipin were having a scuffle over a lathi. At that time the appellant uprooted a Sal Ballah and dealt a stroke on the head of deceased Ramesh causing a bleeding injury. He fell down on the ground. It will appear from the cross-examination of these two eye witnesses that their veracity has not been impeached in any way. No materials were elicited therefrom so as to view their evidence with suspicion. He fell down on the ground. It will appear from the cross-examination of these two eye witnesses that their veracity has not been impeached in any way. No materials were elicited therefrom so as to view their evidence with suspicion. Even though these two witnesses are the relations of the deceased yet, for that reason alone their evidence cannot be discarded. The learned Sessions Judge kept the appropriate caution in mind with regard to appreciation of the evidence of the relation witnesses and accepted the evidence of these eye witnesses and on consideration thereof we do not find any material to differ from the conclusion reached by him. It has, therefore, been amply proved by the prosecution through these two witnesses that the appellant dealt a stroke on the head of deceased Ramesh by means of Sal Ballah which caused his death a few days later. ( 8 ) IT is next to consider if the appellant has assaulted deceased Ramesh in exercise of the right of private defence of his brother Bipin. The evidence of P. Ws 1 and 2 which has been discussed above shows that deceased Ramesh and Bipin were having a scuffle over a lathi. It was not stated by them that deceased Ramesh had attacked Bipin or was assaulting him, so that it was necessary for the appellant to save him from his cluthces. There is no other evidence to indicate even remotely that Bipin was so severely attacked by deceased Ramesh that his life was in danger and so in exercise of right of private defence of his brother, the appellant had to intervene and assault the attacker. Therefore, the appellant is not entitled to the protection of the right of private defence. ( 9 ) NEVERTHELESS, we hardly find it to be a case covered by S. 302, I. P. C. The appellant had no premeditation to murder deceased Ramesh. He did not enter into conspiracy with any one for the above purpose. He did not even intend to commit the murder. He found that deceased Ramesh and his brother Bipin were having a scuffle over a lathi and all on a sudden he lost his temper and dealt a single blow, according to the evidence, on the head of deceased Ramesh. He did not even intend to commit the murder. He found that deceased Ramesh and his brother Bipin were having a scuffle over a lathi and all on a sudden he lost his temper and dealt a single blow, according to the evidence, on the head of deceased Ramesh. Therefore, it seems to be a case in which the appellant caused such bodily injury as was likely to cause death coming under S. 304, Part I, I. P. C. In the facts and circumstances of the case, we are satisfied that the appropriate section to hold the appellant guilty is not 302, but 304, Part I. I. P. C. ( 10 ) IN the result, the appeal is allowed in part. Conviction of the appellant is altered from S. 302 to S. 304. Part I. I. P. C. He is sentenced to undergo rigorous imprisonment for seven years instead of imprisonment. Sentence is accordingly modified. ( 11 ) D. P. MOHAPATRA, J. : - I agree. Order accordingly. 1987 .