JUDGMENT : P.K. Mohanty, J. - This is an appeal against the order of conviction under Section 302, I.P.C. and sentence of life imprisonment. 2. The prosecution case, in short, is that the informant Julius Tidu, deceased Sushil tidu and the accused Belen Tidu were the three sons of one Banuk Tidu of Kusumura Phutna. The sons were married and living separately in different parts of the same house. The parents were also living in a portion of the house separately. It was alleged that on 6.6.90 at about 5 P.M., the deceased quarrelled with the parents demanding more lands in his share. He also assaulted the old father and mother in spite of intervention of the elder brother, the informant. When the matter became unbearable, the informant tried to push the deceased out of the house and while he was pushing the deceased, the accused suddenly came with a 'Barsi' in his hand and dealt a blow at the of the head of the deceased. When the deceased fell down, the accused dealt another blow with the Barsi on the neck. The deceased sustained bleeding injuries on his head and neck and died at the spot. The informant lodged the information at the Police Station in the next morning. A case under Section 302, I.P.C. was registered and after completion of investigation, charge-sheet was filed. 3. Plea of the accused was that he was not present in the house on the date of occurrence and as such, he is not the author of the crime. 4. The prosecution examined twelve witnesses in all to prove its case. The learned Sessions Judge, on consideration of the materials on record, has recorded a finding of guilt and convicted the accused under Section 302, I.P.C. and sentenced to undergo rigorous imprisonment for life. 5. P.W. 3 is the elder brother of the accused, who lodged the F.I.R. P.W. 4 is the father, P.W. 5 is the mother of the accused, P.W.6 is the wife of P.W. 3, P.Ws. 7 and 9 are cousins of P.W4, P.W. 9 is also a relation. P.W. 11 is the wife of the deceased. P.W. 10 is the Doctor who conducted the post mortem examination on the dead body. P.W.1 is a witness to the inquest and seizure, P.W. 2 is another seizure witness. P.W. 12 is the Investigation Officer. 6. 7 and 9 are cousins of P.W4, P.W. 9 is also a relation. P.W. 11 is the wife of the deceased. P.W. 10 is the Doctor who conducted the post mortem examination on the dead body. P.W.1 is a witness to the inquest and seizure, P.W. 2 is another seizure witness. P.W. 12 is the Investigation Officer. 6. It is the evidence of P.W.3 the informant that on the date of occurrence, he was absent from his house from 2 p.m. to 7 p.m. and returned in the evening. He found the deceased lying dead with injuries on his head and back of his neck. P.Ws. 3 to 9 had turned hostile, however they have stated that the deceased died at their house on the date of occurrence with injuries in his person, but denied the complicity of the accused. 7. P.W. 11 is the only eye witness, who has supported the prosecution case and she is the wife of the deceased Sushil Tidu. According to this witness, the accused is the younger brother of her late husband and P.W. 3 is the elder brother. She has stated that Banuk Tidu P.W. 4 is her father-in-law and P.W. 5 is her mother-in-law. According to this witness, although she along with her husband and her in-laws were living in the same house, they were separate in mess and living. She stated that 14/15 months back, one day there was quarrel between her husband and her father-in-law for some time. P.W.3 the elder brother of her husband, intervened and took her husband out of the house by pushing him. When P.W.3 was pushing her husband back, the accused came from the room with a Barsi in his hand and dealt two blows on the back of the head of her husband when her husband fell down, then the accused dealt another blow with the Barsi on the left side of his face just below the left ear. The deceased sustained bleeding injuries due to the assault, they tried to give water in the mouth of her husband but he died then and there. It is stated that the accused left the barsi at the spot and left for Sundergarh with his family. She has stated that her father-in-law P.W.4, mother-in-law P.W.5, P.W.3 the elder brother of her husband and three outsiders whose names she cannot say, saw the occurrence. It is stated that the accused left the barsi at the spot and left for Sundergarh with his family. She has stated that her father-in-law P.W.4, mother-in-law P.W.5, P.W.3 the elder brother of her husband and three outsiders whose names she cannot say, saw the occurrence. In her cross-examination, she has stated that the police babu recorded her statement two days after the occurrence, where after her parents took her to their house. This witness further has stated that the place where her husband was quarrelling with her father-in-law was not clearly visible from the place, where she was standing and as such she cannot say if her husband assaulted her father-in-law or mother-in-law at that point of time. But however she stated that after the quarrel intensified, she went near them. It is her statement that when she wanted to drag away her husband, the wife of P.W. 3 caught hold of her, but she remained there. The accused came from the back of the deceased and gave the blow on the back of the head, M.O.I. is the only Barsi which was there in their house. According to this witness, P.W.3, her father-in-law (P.W.4) and mother-in-law (P.W.5) and three outsiders have seen the occurrence. P.W.3 is no other than the brother of the deceased as well as of the accused. He had however not supported the prosecution case and the F.I.R. lodged by him and stated in his evidence that he was not present in the village on the date of occurrence and had gone to village Chhemunda. On his return, he found deceased Sushil lying dead in the house. But he has stated that he found the deceased quarrelling with his mother. He has further stated that he has found two injuries on the deceased on the head and back of the neck. He found his parents and other family members present near the dead body, but did not see the accused there. He has further stated that he verbally reported the matter at the Police Station, which was reduced into writing by the police and he signed thereon. But he has disputed the contents of the F.I.R. and says that it was not read over and explained to him nor a copy of the same was made over. This witness has been cross-examined by the prosecution. But he has disputed the contents of the F.I.R. and says that it was not read over and explained to him nor a copy of the same was made over. This witness has been cross-examined by the prosecution. It has been brought out from the cross-examination that he was present in the house when the occurrence took place at 5 P.M. In all he has totally resiled from the version in the F.I.R. as well as his statement under Section 161 Cr.P.C. 8. Sri Pati, learned counsel for the appellant, has contended that the learned trial Court ought not to have believed the F.I.R. story, Ext.5, the contents of which, according to P.W. 3 the informant, was not read over and explained to him, inasmuch as the informant having not admitted the contents of Ext. 5 to be correct. It is the further submission of Sri Pati that the delay in lodging the F.I.R. has not been explained nor the learned Sessions Judge has taken that fact into consideration in his judgment. The injuries caused to the deceased as indicated in Ext.5 do not corroborate with the post mortem report, Ext.6, nor it corroborates with the opinion of the Doctor, P.W. 10, who conducted the post mortem examination. It is the submission of the learned counsel that the trial Judge ought not to have relied on the prevaricating statement of the solitary eye witness, P.W. 11, who is no other than the wife of the deceased. It is contended that P.W. 11 having stated that there were independent eye witnesses, who had seen the occurrence, non-examination of such witnesses is fatal to the prosecution case, inasmuch as the inimical relationship of the deceased with the accused-appellant for a share in the property would have weighed with the trial Judge to scan the evidence with care and caution. Much emphasis has been given on the delay in lodging the F.I.R., but however, the learned Sessions Judge has considered the matter in its proper perspective and has rightly observed that P.W. 11 being the young widow of the deceased, married only 3/4 months before the date of occurrence and the occurrence being in the night, she could not have dared to go to the police station to lodge the F.I.R. Rather, it is the consistent case that after the parents of. P.W. 11 came to her house, on the next morning P.W. 3 volunteered to lodge the F.I.R. and as such there is nothing to disbelieve or discredit the F.I.R. version. 9. The contention of the learned counsel for the appellant is that the evidence of P.W. 11, the sole eye-witness with regard to the injuries on the person of the deceased having not been corroborated by the medical evidence, no reliance can be placed on such evidence. According to P.W. 11, the accused came from back of the deceased and gave the blow on the back and head with the Barsi, M.O.I. and after the deceased fell down, he struck the second blow just below the neck. P.W. 10, the Doctor who conducted post-mortem examination found the following external injuries: 1. Incised wound on the poster lateral aspect of neck left side with fracture on the cervical vertebra of size 3" x ?" x ?"". 2. Incised wound 2"" x ?""x bone deep with fracture skull occipital region left side. 3. Incised wound 3"" x 1"" bone deep with bevelled fracture of skull on left parietal region 5"" above left car. On dissection of the dead body of the deceased, the doctor found the following internal injuries: 1. Linear facture of skull extending from injury No.3 to injury No.2 as above and further downwards to foramens magnum. 2. Subdural blood clot covering left parito-occipital region membrances were intact. 3. Contusion over the scalp corresponding to external injury No.2 and 3 above. According to the Doctor, the injuries were ante mortem in nature and were sufficient in ordinary course of nature to cause death. The injuries to the deceased were possible by the Barsi, M.O.I. Thus, there is no material variation between the version of the eye-witness P.W. 11 and evidence of P.W. 10. There is nothing on record to show that such an injury cannot be possible, if an assault is given from the back or from any other side except face to face. The only opinion of the doctor that a right handed man would cause the injury on the head and neck of the victim standing face to face, does not dislodge the prosecution case, specially the version of an eyewitness. The only opinion of the doctor that a right handed man would cause the injury on the head and neck of the victim standing face to face, does not dislodge the prosecution case, specially the version of an eyewitness. It is the settled principle of law that where the eye-witness's version is found to be true and trustworthy, little variation in the opinion of the Doctor pointing out any alternative possibility cannot discredit the prosecution case. 10. The next submission of the learned counsel is that the evidence of the sole eye-witness, P.W. 11 having not been corroborated by any other ocular testimony specially the eye witnesses, who were stated to be present at the occurrence, the prosecution case ought not to have been believed by the learned Sessions Judge. Law is fairly well-settled that the testimony of sole eye-witness, if found reliable, true and trustworthy, it is sufficient in certain circumstances to return a verdict of guilt. P.W. 11 is no other person than the wife of the deceased. Close relationship with the victim is not a ground for disbelieving a witness. Ordinarily, a close relative does not screen the real offender. It has been held by the apex Court in Dilip Singh v. State of Punjab AIR 1953 Supreme Court 364 that close relationship with the victim, far from being a foundation for criticism of the evidence is often a sure guarantee of truth. The apex Court yet in another decision State of Punjab v. Jagir Singh AIR 1973 Supreme Court 2407 held that a close relative of a victim is not an interested witness and his evidence is not only reliable but preferred to other evidence. In that view of the matter, there is nothing as to why the evidence P.W. 11, the widow of the deceased and an eye-witness, who was throughout present at the place of occurrence, the occurrence having taken place inside the house, should be discarded. It may be placed on record that the other witnesses P.Ws. 3, 4, 5, 6, 7, and 9 are the brother, parents and the cousins of the accused and also of the deceased. The brothers having lost one brother and the parents their son, may not like to lose the other for which perhaps they have resiled from their earlier statement and have turned hostile and cross-examined by the prosecution on all material particulars. 11. The brothers having lost one brother and the parents their son, may not like to lose the other for which perhaps they have resiled from their earlier statement and have turned hostile and cross-examined by the prosecution on all material particulars. 11. The next submission of the learned counsel is that in view of the statement of P.W. 3 that the contents of the F.I.R. written purportedly on the oral statement of P.W.3 was not read over and explained to its author, P.W. 3 and the F.I.R. having not been duly lodged, the prosecution story has to be totally disbelieved. The occurrence took place on 6.6.90 at about 5 P.M. in a village situated at a distance of 25 Kms. from the Police Station and the F.I.R. has been lodged at 9 A.M. on 7.6.90. P.W. 3, who had lodged the F.I.R. and turned hostile, however in his examination-in-chief has made a positive statement that since his village was at a distance and it was a jungle road, he did not come during the night to lodge the F.I.R. In that view of the matter, no exception can be taken to the alleged delay, the same having been explained sufficiently. The version in the F.I.R. can be used to contradict the author thereof. P.W.3, the informant has specifically stated about the death of his deceased brother with two specified injuries on his person and the fact that he had himself gone to lodge the F.I.R. This witness has only retracted from his earlier version by saying that the exact occurrence was not seen by him because of his absence. This is a subsequent development after the F.I.R. was lodged. P.W.3 and the deceased as well as the accused are uterine brothers and a part of the F.I.R. story has been given go bye only to the extent of the exact assault P.W. 11, the widow of the deceased has given a vivid description of the incident and has also been rightly believed by the trial Judge as veil as, on consideration of her evidence, we have, in the earlier part of this judgment, found that the evidence of P.W. 11 is trustworthy and reliable. In that view of the matter, the contention of the learned counsel has to be rejected. 12. In that view of the matter, the contention of the learned counsel has to be rejected. 12. The learned counsel for the appellant lastly submitted that in case the Court find that the accused appellant is responsible for the death of his deceased brother Sushil, then in the facts and circumstances of the case, there being no enmity, no direct quarrel the incident having happened, the deceased having abused his parents and assaulted them, at a spur of the moment, the appellant having lost his self-control, the parents having been abused and assaulted in his presence the accused appellant had no intention to kill the deceased. This submission of the learned counsel needs consideration. The prosecution story is that the deceased wanted some more share in the joint family properties from his father and a quarrel ensued between the deceased on the one hand and the father and mother on the other, in presence of the other brothers including the P.W. 3 and the accused as well as the wives of the brothers. The quarrel having been intensified, the deceased assaulted the parents. The appellant, who is the brother of the accused and was also the son of the deceased who are being abused and assaulted and in spite of intervention of the other brother P.W. 3, he did not desist from the quarrel, the appellant got the Barsi from inside the house and inflicted the blows. The sequence of event given by the prosecution through the eye-witness P.W. 11, the widow of the deceased, reveals and testifies the aforesaid sequence. In that view of the matter, we are of the considered opinion that in fact the appellant did not have the necessary intention to kill the deceased specially when he did not have any personal quarrel or grudge against him but for the abuses hurled to the parents and the assaults made by the deceased, he lost his self-control and inflicted the blows. However, the knowledge that the blows inflicted on the deceased would cause the death in ordinary course of nature can well be imputed to the accused-appellant. The occurrence has taken place without premeditation, on a sudden fight and in a heat of passion. However, the knowledge that the blows inflicted on the deceased would cause the death in ordinary course of nature can well be imputed to the accused-appellant. The occurrence has taken place without premeditation, on a sudden fight and in a heat of passion. In the facts and circumstances of the case, the act committed by the accused in inflicting the fatal blows on the deceased resulting in his death on a sudden provocation, in our considered opinion, will fall under Section, 304 Part II, I.P.C. and not under Section 302, I.P.C. as has been held by the learned trial Judge. 13. In the circumstances, we are inclined to hold that the accused-appellant is guilty of an offence under Section 304, Part II, I.P.C. and not under Section 302, IPC. and therefore we acquit the accused-appellant from the charge under Section 302, I.P.C. and convict him under Section 304, Part II, I.P.C. Considering the facts and circumstances of the case, we feel that a sentence of 8 (eight) years rigorous imprisonment would meet the ends of justice and so we do. The accused is sentenced to undergo rigorous imprisonment for 8 (eight) years. 14. The appeal is allowed in part to the extent indicated above. P.C. Naik, J. - I agree. Final Result : Allowed