PHUKAN, C. J. ( 1 ) THIS appeal arises out of the judgment and order dated 16-11-1992 passed by the learned Sessions Judge, Phulbani in Sections Case No. 61 of 1992. The learned Sessions Judge found the accused-appellant guilty of the offence under Section 302 of the Indian Penal Code, 1860 (in short 'ipc') and convicted him accordingly. The accused was sentenced to undergo rigorous imprisonment for life. ( 2 ) SHORTLY stated, the prosecution case is that the deceased Kasira Pradhan had borrowed Rs. 60/- from one Bedera Baliarsingh and the accused appellant was a surety for the above loan. As the deceased could not pay the amount the accused- appellant asked deceased to repay the amount. The occurrence took place on 12-4-1992 at about 8. 00 p. m. While P. W. 1, son of the deceased was lying on the outer verandah of his house keeping his baby daughter on his chest to make her sleep, the accused-appellant came and made the statement that he would commit murder of the deceased and at that time the deceased was standing in front of his house holding his grand son aged about 4 years. At that point of time deceased left behind the child and went near the accused saying 'kemiti MARIBU MARE'. Thereafter accused inflicted lathi blow on the left side of the abdomen of the deceased and another blow on his right parietal region and deceased fell down and immediately succumbed to the injuries. The son of the deceased, P. W. 1 raised hullah and persons of the locality assembled at the spot. The occurrence was reported to the A. S. I. , Subarangiri Out Post and it was reduced to writing. Ext. 1 is the said F. I. R. which was sent to the Officer-in-charge, Kotgarh Police Station and a case was registered. A sketch map on the spot was prepared as per Ext. 10. Investigating agency examined witnesses, held inquest of the dead body vide inquest report Ext. 2, seized the lathi which was lying near the spot and sent the dead body to Daringibadi hospital for autopsy. The accused-appellant was arrested, articles were seized and on completion of investigation charge sheet was submitted under Section 302, IPC. 10. Investigating agency examined witnesses, held inquest of the dead body vide inquest report Ext. 2, seized the lathi which was lying near the spot and sent the dead body to Daringibadi hospital for autopsy. The accused-appellant was arrested, articles were seized and on completion of investigation charge sheet was submitted under Section 302, IPC. ( 3 ) THE accused pleaded complete denial of his involvement while recording statement under Section 313 of the Code of Criminal Procedure 1973 but from the trend of cross-examination we find that the defence plea was that the deceased was suffering from epilepsy and being attacked by the said disease, he fell down, hit his head with a stone and died. ( 4 ) BEFORE the trial Court prosecution examined as many as ten witnesses including the son of the deceased, P. W. 1-Informant, the doctor who conducted autopsy as P. W. 2. It may be stated that apart from P. W. 1, P. Ws. 3 to 5 were alleged eye-witnesses. P. Ws. 6 to 8 are formal witnesses to the seizure as well as taking dead body to the hospital. P. Ws. 9 and 10 were the Investigating Officers. The defence did not examine any witness. ( 5 ) THE first question to be decided is whetherthe deceased met with homicidal death and for this purpose evidence of the doctor Sri S. K. Misra (P. W. 2) who conducted the autopsy is relevant. We may state here that Dr. Misra was examined as P. W. 2 but in the paper book his evidence has not been annexed. Moreover, Abhinga Muthamajhi though examined as P. W. 3 has been shown as P. W. 2 in the paper book. Office should be careful in future and the Registrar (Judicial) shall issue appropriate direction. ( 6 ) ACCORDING to P. W. 2 on 14-4-1992 he (Sri S. K. Misra, P. W. 2) conducted autopsy on the dead body and found one haemotoma about 2" radius below right side of temporalis muscles and after opening the skull, durametall, liquid blood were found in subdural space on right temporal region. Blood was covered with thin layer of liquid blood and, therefore, no further examination over the dead body could be conducted due to advanced stage. The cause of death of the deceased was due to subdural and cerebral haemorrhage causing COMA. Blood was covered with thin layer of liquid blood and, therefore, no further examination over the dead body could be conducted due to advanced stage. The cause of death of the deceased was due to subdural and cerebral haemorrhage causing COMA. The injuries were ante-mortem and might have been caused with hard and blunt weapon. He has specifically stated that injuries might have been caused by the material object M. O. 1 and that subdural and cerebral haemorrhage as stated above was sufficient in ordinary course to cause death of the deceased Ext. 4 is the post-mortem report and Ext. 4/1 is his signature on Ext. 4. It appears that on 7-7-1992 the Officer-in-charge, Kotgarh Police Station sent a requisition asking for a clarification of the doctor P. W. 2 as to whether there was another injury on left belly of the deceased. The said requisition is marked as Ext. 6 and according to the doctor due to advanced stage of putrification he could not detect any injury on the left side belly of the deceased. Ext. 6/1 is the report and Ext. 6/2 is the signature. In cross-examination he has specifically denied the suggestion that the injuries found by him were not possible if after reeling, one falls over a stone and the head comes in contact with stone. Thus from the evidence of the doctor P. W. 2 we have no hesitation to hold that the deceased met with homicidal death. ( 7 ) THE next question is whether the accused was the perpetrator of the crime. For the above purpose let us scan the evidence of the eye witnesses, namely, P. W. 1-informant, son of the deceased and P. Ws. 3 to 5. ( 8 ) FROM the evidence of P. W. 1 we find that the accused who was identified in the dock claimed the amount of loan taken from his deceased father which the accused-appellant stated to have been repudiated. He also made a declaration that he will commit murder as he did not return back the money to him. His father who was holding the son of P. W. 1 aged about 4 years, left his child on the road and challenged the accused saying; "kemiti MARIBU MARO". Thereafter accused-appellant picked up a lathi and inflicted a blow on the upper abdomen. His father who was holding the son of P. W. 1 aged about 4 years, left his child on the road and challenged the accused saying; "kemiti MARIBU MARO". Thereafter accused-appellant picked up a lathi and inflicted a blow on the upper abdomen. Immediately thereafter his deceased father with much difficulty went five steps forward and stood there. In the meantime, the accused inflicted another blow with the same lathi on the head of his father as a result of which the deceased-father fell down. He picked up the head of his father and when his mother wanted to administer water to the deceased she could not do so. After inflicting blow on the head of the deceased accused fled away leaving lathi on the spot. His father died immediately thereafter. He has identified the lathi marked M. O. I. According to him, the occurrence took place at about 8. 00 p. m. and he could see that as it was a moonlit night. Thereafter man/persons of the village assembled at the spot and he along with others went to the police out post and reported the incident which was reduced to writing. He has made a categorical statement that it was read over to him and after finding the same to be correct, put his signature, thereon. Ext. 1 is that F. I. R. and Ext. 1/1 is his signature thereon. ( 9 ) FROM his evidence we find that the house of the accused-appellant is just in front of the house of the deceased intervened by the village danda (road ). Though the F. I. R. was recorded in Oriya and P. W. 1 has stated that he does not know Oriya, the learned Sessions Judge has recorded that he gave his evidence in Oriya. ( 10 ) P. W. 3 has identified the accused and he has stated that the accused inflicted two lathi blows; one on the left side abdomen and the other over the parietal region of the deceased. He also identified the lathi marked as M. O. I. He has fully corroborated the evidence of P. W. 1. He was examined by the I. D. after three days of the occurrence and according to him, he disclosed the incident to his wife only. He also identified the lathi marked as M. O. I. He has fully corroborated the evidence of P. W. 1. He was examined by the I. D. after three days of the occurrence and according to him, he disclosed the incident to his wife only. In cross-examination he has specifically stated that the accused anddeceased picked up quarrel on several occasions prior to the occurrence and he saw the occurrence from the court yard of his house and as the accused threatened him to murder, he did not go close to the accused-appellant. He has further stated that he was taking meals in his house while the occurrence took place. ( 11 ) P. W. 4 is also an eye-witness and he has also stated that the accused inflicted two Lathi blows; one on the left abdomen and another on the right parietal region of the deceased in front of the house of the deceased, as a result of which deceased fell down and died immediately. He has stated in cross-examination that the deceased was his agnatic relation and that he did not disclose the incident to anybody. He has denied that he was examined by the Investigating Officer. ( 12 ) P. W. 5 has stated that he knows the deceased and also the accused-appellant. He has also stated that the accused-appellant gave two blows with lathi as a result of which deceased fell down and succumbed to the injuries. He has identified the lathi M. O. I. ( 13 ) THOUGH P. W. 4 has stated that he was not examined by the I. O. , we find from the evidence of P. W. 9. the A. S. I. that he recorded the statement of the eyewitness. Therefore, his statement can not be accepted. We have perused the police case-diary and we find that the statement under Section 161 Cr. P. C. was recorded by the I. O. on 13- 4- 1992. Therefore, the plea that his statement under Section 161 Cr. P. C. was not recorded by the I. O. , cannot be accepted. ( 14 ) THE learned counsel for the accused appellant has urged, that the statements of the eye-witnesses were not recorded immediately after the occurrence. We are unable to accept the contention inasmuch as the evidence of the witnesses were recorded within three days of the occurrence. P. C. was not recorded by the I. O. , cannot be accepted. ( 14 ) THE learned counsel for the accused appellant has urged, that the statements of the eye-witnesses were not recorded immediately after the occurrence. We are unable to accept the contention inasmuch as the evidence of the witnesses were recorded within three days of the occurrence. The second point urged on behalf of the accused-appellant is that according to the eye-witnesses two blows were given one on the abdomen and the other on the head on the parietal region but according to the doctor and post-mortem report there is no injury on the abdomen. We have already recorded that the I. O. sought for a clarification regarding the injury on the abdomen and doctor gave an opinion which in our opinion can be accepted. Therefore, the ground that there was variation of ocular evidence and that of the medical evidence, cannot be accepted. 14a. In this connection we may refer to the decision of the Apex Court in State of U. P. v. Krishna Gopal, AIR 1988 SC 2154 : (1989 Cri LJ 288 ). We may quote below the relevant portion of para 13 of the aforesaid judgment which runs as follows. ". . . . . . It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses account would require a careful independent assessment and evaluation of their credibility which should not be adversely prejudged making any other evidence including medical evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit worthy; consistency with the undisputed facts the 'credit' of the, witnesses; their performance in the witness-box; their power of observation etc. Then this probative value of such evidence become eligible, to be put into the scale, for a cumulative evaluation. . . . . . " ( 15 ) IN the case in hand both the accused and the deceased were neighbours. Then this probative value of such evidence become eligible, to be put into the scale, for a cumulative evaluation. . . . . . " ( 15 ) IN the case in hand both the accused and the deceased were neighbours. P. W. 1 is the witness being the son and his presence in the house at the time of occurrence cannot be ruled out. Other witnesses are also co-villagers and nothing has been brought out in cross-examination to show that they are highly interested witnesses. Therefore, we accept the oral evidence and hold that accused-appellant was the perpetrator of the crime. ( 16 ) NEXT question is whether conviction under Section 302 IPC is sustainable. From the evidence of P. W. 1 the son of the deceased (sic) recorded at the spot, we find that when the accuse-appellant declared that he would commit murder of the deceased, the deceased challenged him by uttering the words : "kemiti MARIBU MARO". That apart when the first lathi blow was given the deceased went near the accused. P. W. l being the son of the witness would try to alter the words actually exchanged between the accused and thedeceased. We are, therefore, of the opinion that this is a fit case for conviction under Section 304 Part II and not under Section 302, IPC. Accordingly, the appeal is partly allowed to the extent that conviction under Section 302 IPC is converted to one under Section 304 Part II as in our opinion this is a case of culpable homicide not amounting to murder. ( 17 ) CONSIDERING the facts and circumstances of the case, we are of the opinion that the sentence of seven years would meet the ends of justice. Accordingly, the sentence of rigorous imprisonment for life is converted to rigorous imprisonment for seven years and the accused-appellant will be entitled to get the benefit of the period of sentence already undergone. The appeal is partly allowed. ( 18 ) A. PASAYAT, J. , I agree. Appeal is partly allowed. .