JUDGMENT : P.K. Tripathy, J. - Heard arguments from both the sides and the judgment is as follows: 2. Appellant Sudra alias Sudarsan Sehera having been convicted by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Sambalpur in S.T. No. 45/14 of 1996 arising out of G.R. Case No. 228 of 1995 of the Court of the learned S.D.J.M., Deogarh has preferred this appeal and challenge the order of conviction u/s 302 of the Indian Penal Code and the sentence of imprisonment for life (which was wrongly stated by the Trial Court as rigorous imprisonment for life). 3. It reveals from the lower Court record that late Pabitra, Sudhu, the deceased in this case, Sudra alias Sudarsan, the accused-appellant in this case and Bhaskar Behera (P.W. 5) are four brothers. Raibari, the other accused who faced the trial and was convicted for the offence u/s 324 of the Indian Penal Code is the widow of late Pabitra Behera. Satyaban (P.W. 2) and Sanjaya alias Bhawani Sehera (P.W. 4) are her two sons through Pabitra. Charukeshi (P.W. 3) is the sister of accused Raibari and now widow of decease Budhu. 4. Prosecution case is that when P.W. 4 was an infant Pabitra died. Accused Raibari brought up P. Ws. 2 and 4. Sometime before the date of occurrence Le. 14.08.1995 P.W. 2 could discover that his mother (accused Raibari) was keeping physical relationship with accused Sudarsan. He protested and in reaction Raibari threatened to kill him by administering ponson. Thus P.W. 2 convened a village panch and there accused Raibari admitted to have given that threatening but stated that she has no intention to kill his son, Trilochan (P.W. 6) who was in Panchayat, as the Sarpanch / Ex-Sarpanch advised Raibari to live separately. Because of convening of the village Panch accused Sudarsan showed his red eyes to P. Ws. 2 and 4. The Panchayat was concluded at about 7 P.M. and at about 9 P.M. when the deceased together with P. Ws. 2 and 4 were taking food, the accused came and challenged the deceased and also declared that he would prefer to retain the wife of Sudhu as his spouse. When Sudhu protested accused came and caught hold the of the tuff hair and took him outside and dealt a blow by the gupti (M.O.I), which was his possession at that time. When Sudhu protested accused came and caught hold the of the tuff hair and took him outside and dealt a blow by the gupti (M.O.I), which was his possession at that time. That blow injured the neck and the deceased fell down at the spot. According to the allegations of the prosecution accused Raibari had instigated accused Sudarsan to commit crime and further for that purpose she handed over the gupti to accused Sudarsan. When the occurrence of stabbing took place and the accused turned to go away, accused Raibari came there armed with Katuri (M.O.II) and dealt several blows to accused Sudarsan mistaking him to be Sudhu. As a result of that Sudarsan sustained four bleeding injuries on his body. On hearing hullah and being called by others, Pabana Sehera (P.W. 1) a neighbour came to the spot of occurrence and could learn about the occurrence from P.W. 2 and then reported the matter before the Police at Reamal. P.W. 13 registering P.S. Case took up investigation in a routine manner and on completion of investigation submitted charge sheet against the accused Sudra alias Sudarsan Sehera for the offence u/s 302 of the Indian Penal Code whereas u/s 302/109 of the Indian Penal Code against accused Raibari for committing murder of Sudhu and u/s 307 of the Indian Penal Code for attempting to kill accused Sudarsan. 5. Accused/appellant took the plea of complete denial to the aforesaid allegation. At the same time in course of trial he also advanced the plea that the deceased died in course of tussle/scuffle after the deceased inflicted the injuries on the body of accused Sudarsan. 6. To substantiate the charges, prosecution examined 13 witnesses. Besides the above noted witnesses P.W. 10 is the Doctor who examined accused Sudarsan and granted injury report Ext. 8 and his opinion report ext. 9 to the effect that the injuries found on the body of the accused are possible by M.O.II.P. W.11 is Dr. Chakradhar Pradhan who examined the dead body of the deceased and proved the post mortem report Ext. 10 and also his opinion report Ext. 11, in which he opined that the injuries found on the body of the deceased was possible by M.O.I. The rest of the witnesses are formal witnesses i.e. Police Constables and witnesses to different seizure lists. Chakradhar Pradhan who examined the dead body of the deceased and proved the post mortem report Ext. 10 and also his opinion report Ext. 11, in which he opined that the injuries found on the body of the deceased was possible by M.O.I. The rest of the witnesses are formal witnesses i.e. Police Constables and witnesses to different seizure lists. In addition to the aforesaid exhibited documents prosecution also relied on the seizure list in proof of seizure of weapon of offence, blood stained earth, blood stained cloth etc. In addition to that statements u/s 164 of the Code of Criminal Procedure of P. Ws. 2 and 3 were marked as Exts. 16 and 17. No defence evidence was adduced. 7. On appreciation of evidence Trial Court found evidence of P. Ws. 2, 3 and 4 as the eyewitnesses to the occurrence, corroborative and trustworthy. According to him, the charge u/s 302 of the Indian Penal Code is clearly proved against accused Sudarsan from such evidence read with evidence of P.W. 11 and the Post Mortem report Ext. 10. Referring to the medical evidence, he held that the deceased suffered homicidal death. Learned Additional Sessions Judge did not find any substance in the plea of right to private defence or sustaining of injury by the accused in course of scuffle with the deceased and in that respect he also relied on the evidence of P. Ws. 2, 3 and 4 to the effect that accused Raibari inflicted those injuries on the body of accused Sudarsan. On a conceptus of the aforesaid evidence and the assessment thereof, learned Additional Sessions Judge held that the Appellant is guilty of the offence u/s 302 of the Indian Penal Code. However, learned Additional Sessions Judge recorded that there was no evidence on record to substantiate the charge of abatement of murder by accused Raibari. Accordingly, she was acquitted of the charge u/s 302/109 of the Indian Penal Code. She was also found not guilty of the offence u/s 307 of the Indian Penal Code. However, Trial Court found that Raibari inflicted grievous injury to the co-accused and therefore, she is guilty of the offence u/s 324 of the Indian Penal Code and accordingly sentenced her to undergo rigorous imprisonment for six months and to set off from the period of detention as Under Trial Prisoner. However, Trial Court found that Raibari inflicted grievous injury to the co-accused and therefore, she is guilty of the offence u/s 324 of the Indian Penal Code and accordingly sentenced her to undergo rigorous imprisonment for six months and to set off from the period of detention as Under Trial Prisoner. Neither Raibari preferred any appeal against the order of conviction nor the Counsel for the State speaks about any appeal preferred by the State as against the order of acquittal of Raibari from the offence u/s 302/109 or 307 of the Indian Penal Code: Under such circumstances conviction and sentence of Raibari is not to be considered in this appeal. 8. Appellant has set forth the grounds of non-possibility of proper identity of the assailants by the eyewitnesses as the occurrence took place in the dark night. He has set forth the further ground that since in course of occurrence he sustained injuries as a logical corollary, it should be held that he sustained such injuries in the manner stated by him and the benefit thereof should go in his favour and he should be granted the benefit of doubt. 9. Mr. P.C. Mishra, Learned Counsel arguing for the Appellant, reiterating the aforesaid grounds advanced by the Appellant also adds few more grounds challenging the order of conviction. He argues that P. Ws. 2 to 4 being interested witnesses no reliance should be placed on their evidence. P.W. 4 being a child witness, his evidence should not be given any credit. If that part of prosecution evidence is not accepted then narration of facts by the witnesses justifies the right of private defence and the injuries sustained by him substantiate that plea. Alternatively he argues that the occurrence having taken place on sudden fight and the Appellant dealt one stab blow, therefore, at best it be recorded as culpable homicide not amounting to murder punishable u/s 304 Indian Penal code and the conviction and sentence be modified accordingly. 10. Mr. AK Mishra, learned Standing Counsel states that evidence of P. Ws.2 to 4 does not suffer from any infirmity so as to doubt their veracity. He argues that the finding recorded by the Trial Court about homicidal death and the appellant being the author of the injuries are sufficient to prove the charge u/s 302 of the Indian Penal Code. AK Mishra, learned Standing Counsel states that evidence of P. Ws.2 to 4 does not suffer from any infirmity so as to doubt their veracity. He argues that the finding recorded by the Trial Court about homicidal death and the appellant being the author of the injuries are sufficient to prove the charge u/s 302 of the Indian Penal Code. He further argues that during the I trial at no point of time there was a challenge to the identity of the accused as assailant and it could not have been and that accused was the aggressor and the theory of right to private defence is a myth. Accordingly, he argues to sustain the impugned judgment. 11. In a case of murder the first and foremost thing which should be determined is as to whether the deceased suffered homicidal death. We have perused the evidence of P.W. 11 who conducted post mortem examination. We find from that evidence and Ext. 10 that the deceased suffered one stab wound on the left side of the neck 9 cm. below the left ear and the size of the injury was 1 cm x 1 cm x 17 cm depth. The Doctor found the corresponding internal injury of stab wound of 7 cm depth on the left side lungs and the consequential result of the death due to shock and hemorrhage on account of the above noted stab wound and further opined under opinion report, Ext. 11 that the injuries (external and internal) possible by M.O.I. From the aforesaid evidence, we hold that prosecution has proved that the deceased suffered homicidal death. 12. The next crucial question, which falls for consideration is as to whether the accused-appellant is the author of that injury. In that respect P.Ws. 2, 3 and 4 have not only narrated about the illicit relationship between two accused and the reaction from them on a Panchayat being convened by P.W. 2 but also about the reaction exhibited by them. Accused Sudarsan came and attacked the deceased and dealt a stab blow. Learned Counsel for the Appellant points out to certain omissions, which were confronted to the witnesses in course of their cross-examinations. The omissions are relating to P.W. 2 did not sate that he was going to take food or P.WA did not state that he had washed his hands for taking food etc. Learned Counsel for the Appellant points out to certain omissions, which were confronted to the witnesses in course of their cross-examinations. The omissions are relating to P.W. 2 did not sate that he was going to take food or P.WA did not state that he had washed his hands for taking food etc. The aforesaid omissions do not at all amount to contradiction and such omissions are trivial in nature, so as not to doubt the veracity of the witnesses. Learned Counsel for the Appellant challenged the evidence of P. WA on the ground that h is a child witness. It appears from his evidence that he has twelve years old on the date of deposition and oath was administered to him. What he had stated in his deposition is corroborated by the evidence of P.Ws. 2 and 3 in all material particulars. Therefore, he is not to be discredited simply because he is a child witness. In that respect, the ratio cited from the case of Udhab Sethy v. State of Orissa 85 (1998) CLT 295 is hardly applicable in this case. Learned Counsel for the Appellant also relies in the case of Dhana Harijan v. State (2000) 19 OCR 259 in support of his submission that P.W. 3 being the wife of the deceased is not a competent witness to speak about the occurrence. No such ratio has been propounded in the decision save and except stating that when the evidence of wife of the deceased is found to be unreliable, a conviction cannot be based on such evidence. It is needless to say that the ratio is not applicable to the present case inasmuch as, we have found the evidence of P.W. 3 to be reliable. Similarly, Appellant relies in the case of Tabatia Mallick and Anr. v. State of Orissa (1997) 12 OCR 538 in challenging to the credibility of the eyewitnesses. In the reported case, the improbability and discrepancy found in the evidence of the eye witnesses (P. Ws. 1, 2 and 3) was considered and it was held that such evidence should not be relied upon. No such circumstance being emerging in the present case, the said ratio is of no help to the Appellant. Appellant argues that the occurrence took place in the dark night and absence of light could have resulted in misidentification of the assailant. 1, 2 and 3) was considered and it was held that such evidence should not be relied upon. No such circumstance being emerging in the present case, the said ratio is of no help to the Appellant. Appellant argues that the occurrence took place in the dark night and absence of light could have resulted in misidentification of the assailant. The aforesaid argument is devoid of merit inasmuch as in the evidence of P. Ws. 2 and 4 they have stated about the accused carrying a torch light and apart from that the occurrence was seen by each of them from very close distance and that too committed by the accused, who is related to P. Ws. 2 and 4 as uncle and the husband's brother of P.W. 3. Apart from the that in course of trial no question was put to any witnesses challenging to their statements regarding identity of the accused. Under such circumstances, the argument of the Appellant is far fetched and that is how we do not find any relevance of the citation i.e. the case of Adikanda Muni v. State of Orissa (11995) 8 OCR 536 . 13. Appellant argues that if the prosecution is not disbelieved on the aforesaid grounds then the evidence on record clearly establishes exercise of right to private defence by the accused. Right of private defence is a plea, which comes under the Exception Chapter Le. Chapter IV of the Indian Penal Code. In this case accused has not led any evidence in support of such a plea. Mere suggestion given to P. Ws. 2 to 4 about the exercise of such right is found deficient to establish such a plea. In that context the accused has not stated at what point of time of occurrence, he exercised right of private defence of his body. Apart from that the right of private defence appears to be an after thought inasmuch as accused could not have come prepared with a gupti to the spot of occurrence with apprehension of attack by the deceased when the narration of events indicates that it is the accused who came and abused and challenged. Apart from that the evidence of P.W. 1 0 and the injury report (Ext. Apart from that the evidence of P.W. 1 0 and the injury report (Ext. 8) indicate that the accused has sustained four incised injuries which are as follows: i) 6" x 3" x 4" on the chest 3" below right shoulder together with injury to the right lungs and ribs. ii) 4" x 3" x 3" on the left elbow joint with injury to triceps muscle. iii) 2" x 1" x 1/2" below the left eye. iv) 1" x 1/2" x 1/2" on the back of left elbow joint. 14. It is the evidence of P.W. 1 that after sustaining such injury accused was lying at the spot with bleeding. According to the eye witnesses accused Raibari dealt those blows to the co-accused by, means of Katari M.O.II under a mistaken belief that she was attacking the deceased. Be that as it may, after sustaining such injury there could not have been any physical ability with the accused to catch hold of the deceased and to deal the stab blow on the neck. In a nutshell we find that not only the Appellant has not proved the right of private defence, but he has developed a plea, as after thought. Under such circumstances, we do not find any relevance of the ratio in the case of Nirakar Pradhan v. State of Orissa 1997 (II) OLR 22 . 15. As the last alternative Appellant 'argues that since the dispute is within the family relating to the' relationship between the two accused, therefore, the occurrence which took place was in the hit of passion and apart from that the evidence of P.W. 1 indicates that the deceased was the aggressor and therefore, it is appropriate to hold the offence to be culpable homicide not amounting to murder when one stab injury was inflicted by the accused. In support of such contention the Appellant relies in the cases of Ramu Minz v. State of Orissa 2008 (1) C.J.D. (H.C.) 117, Bahma Behera v. State (1997) 12 OCR 606, Beti Suka v. State (1997) 13 OCR 120, Mishra Khurami and Anr. v. State (1997) 13 OCR 134, Mahura @ Nami Behera v. State (1991) 4 OCR 287 and Dhanu @ Dhanurdhar Sahu and Anr. v. State of Orissa 2002 (1) Cri 683. 16. v. State (1997) 13 OCR 134, Mahura @ Nami Behera v. State (1991) 4 OCR 287 and Dhanu @ Dhanurdhar Sahu and Anr. v. State of Orissa 2002 (1) Cri 683. 16. On a careful reading of the aforesaid citations, it is seen that the present case is distinguishable from each of them inasmuch as in this case we find that there was no provocation from the side of the deceased. Even there was no immediate provocation from P.W. 2, it is after the village Panch, which was completed at 7 P.M., that the accused of his own, caused the occurrence at 9 P.M. after coming to the spot being armed with M.O.I. The injury which was found on the dead body of the deceased was sufficient to cause death of the deceased at the spot. If at all accused Sudarsan had no intention to kill but had the intention to cause bodily injury than 'Thirdly' in Section 300 Indian Penal Code is applicable. That provision says that "If it is done with the' intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death" then that amounts to 'Murder'. Therefore the crime committed by the accused cannot be callable homicide not amounting to murder but it is murder as defined in Section 300 and punishable u/s 302 of the Indian Penal Code. Under such circumstances, we also do not accept the argument of the Appellant to modify the order of conviction. 17. Lastly, Learned Counsel for the Appellant argues that the Appellant having already spent 13 years inside the prison, some leniency should be shown to him. In that respect we cannot help the situation in view of the penal provision and the punishment prescribed for the offence u/s 302 of the Indian Penal Code. However, it is open for the Appellant to move the State Government u/s 433 and 433A of the Code of Criminal Procedure for due consideration of the Government on which we express no opinion. 18. In the result, the order of conviction u/s 302 Indian Penal Code is maintained together with Sentence for imprisonment for life and accordingly, the Criminal Appeal is dismissed. 19. Appeal dismissed. Final Result : Dismissed