JUDGMENT : Pradip Mohanty, J. - The Appellants have been convicted under Sections 302 and 307, I.P.C. by the Learned Sessions Judge, Keonjhar in S.T. Case No. 11 of 1999. Each of them has been sentenced to imprisonment for life u/s 302, I.P.C. No separate sentence has been awarded u/s 307, I.P.C. in view of the sentence imposed u/s 302, I.P.C. 2. The case of the prosecution is that the deceased Babaji Behera and the accused -Appellants are residents of village Bhandaripada. There is a well near the house of the accused-Appellants. On 08.03.1998 at about 8.00 A.M. Saudamini Behera (P.W.3), daughter of the informant (P.W.1) and grand daughter of the deceased, had been to the said well to wash vegetables. In course of washing, the rope of the sister of accused Mana, who was also present there, got drenched. For this, accused Mana assaulted Saudamini, who on returning home complained about the same before her grand father (deceased). When the deceased called out both the accused persons by their name, they came out from their house. Mana was armed with a square wooden handle and accused Dwari was armed with a round wooden handle of an axe. There was some altercation over the incident. In course of such altercation, both the accused-Appellants assaulted the deceased with their respective weapons. Hearing shout and sound of assault, RW.2-Manika Behera, the wife of the informant rushed to the spot, but she was immediately apprehended by both the accused-Appellants at the front door of her house and was dragged to a distance where she was also assaulted by the accused persons. At that time, Rabinarayan Behera (P.W.1), who was returning from the paddy field, hearing hullah near the village well, rushed to the spot and found his father and wife lying near the well and in front of his house respectively. He was also assaulted by the accused-Appellants. P.Ws.3, 4 and 14 witnessed the occurrence and immediately rushed to the well.The accused-Appellants chased RWs. 3 and 4 giving out threats to rape them, for which they escaped to the nearby sugarcane field. After the occurrence, P.W.I shifted the deceased and his wife to Sainkul Community, Health Centre and from there to Ghasipura Hospital where the deceased was declared dead. 3 and 4 giving out threats to rape them, for which they escaped to the nearby sugarcane field. After the occurrence, P.W.I shifted the deceased and his wife to Sainkul Community, Health Centre and from there to Ghasipura Hospital where the deceased was declared dead. He reported the matter to the O.I.C., Ramachandrapur Police Station, who, after completion of investigation, submitted charge-sheet under Sections 302 and 307, I.P.C. against the accused-Appellants. 3. The plea of the accused persons is complete denial of the allegation. They have also examined a defence witness through whom it has been sought to be established that deceased Babaji Behera got the injuries while working in the Mines by fall of stone on his head. 4. In order to prove its case, the prosecution examined as many as 16 witnesses. 5. The Learned Sessions Judge, Keonjhar, who tried the case, convicted and sentenced the present Appellants under Sections 302 and 307, I.P.C. as stated hereinbefore, with a finding that both the accused-Appellants assaulted the deceased and P.W.2, a woman, who were unarmed, with strong wooden handles on their vital part, i.e., the head. 6. Mr. Das, Learned Counsel for the Appellant drawing our attention to the evidence of the prosecution witnesses, submits that RWs.2, 3, 4 & 14, the so called eye witnesses to the occurrence, have given inconsistent statements. Moreover, PW. 14 also admitted in his evidence that Soudamini (P.W.3) escaped from the spot. RW.15 in his statement stated that hearing noise outside, he came out of the house and saw Babaji Behera lying on a stony platform. He saw the deceased having severe injury on his head and there was profuse bleeding. P.Ws.11 and 13 have not supported the prosecution story. P.Ws. 1 to 4 and 14 are relations of the deceased and are thus interested witnesses. Therefore, their version should not be believed. RW.1'1, who examined the injured opined that the injury to the head can be possible by fall with considerable force on stones. He also admitted that injury Nos. II and III on the deceased can be caused by the same process. P.W.15 in his evidence stated that the deceased was lying on stone. Therefore, there is no material on record to implicate the Appellants in commission of the crime and the Trial Court has erred in convicting and sentencing them u/s 302, I.P.C., which should be set aside. II and III on the deceased can be caused by the same process. P.W.15 in his evidence stated that the deceased was lying on stone. Therefore, there is no material on record to implicate the Appellants in commission of the crime and the Trial Court has erred in convicting and sentencing them u/s 302, I.P.C., which should be set aside. In the alternative, he argues that there was no premeditation on the part of the Appellants to assault the deceased and P.W.3. The>occurrence took place in course of a quarrel. The assaults were given in the heat of passion due to sudden provocation. That apart no deadly weapons were used in giving the assaults. Therefore, the conviction of the Appellants u/s 302, I.P.C. is not sustainable in law. At best they may be guilty of an offence u/s 304, Part-I, I.P.C. 7. Learned Counsel for the State vehemently opposes the contention of the Learned Counsel for the Appellants on the ground that the evidence of P.Ws.1, 2, 3, 4 and 14 is clear and cogent. There is no reason to disbelieve the above witnesses. Moreover, P.Ws. 2 and 3 are the injured witnesses and there is no ground to discard their evidence. He also submits that the report was lodged at about 10.00 A.M. on 08.03.1998 before the O.I.C., Ramachandrapur Police Station and on the same day at 11.15 A.M. the O.I.C. drew up formal F.I.R. and registered P.S. Case No. 24 of 1998. Therefore, there is no delay in lodging the F.I.R. He also submits that the evidence of P.W.2 is very clear with regard to the intention of the accused-Appellants. 8. Perused the LCR. P.W.1 is the son of the deceased. After hearing hullah, he rushed to the spot and found his father lying on the spot with severe cut bleeding injury on his right side head. His wife (P.W.2) was lying in front of his house having five bleeding injuries on her head. The accused-Appellants, who were there suddenly attacked him and dealt one lathi blow to his head just in front of his house. After the assault, the accused-Appellants fled away from the spot. He shifted his deceased- father and his wife to Ghashipura S.D. Hospital in a Trekker and his deceased-father expired immediately. P.W.2 is the injured. She is the wife of P.W.1 and the daughter-in-law of the deceased. After the assault, the accused-Appellants fled away from the spot. He shifted his deceased- father and his wife to Ghashipura S.D. Hospital in a Trekker and his deceased-father expired immediately. P.W.2 is the injured. She is the wife of P.W.1 and the daughter-in-law of the deceased. She specifically stated that Appellant-Mana assaulted her daughter and her daughter complained before the deceased (father-in-law). Thereafter, the deceased went to the spot to enquire into the matter. She heard the altercations between the deceased and the Appellants. Suddenly she heard the sound of assault. When she tried to rush up to the well, she was obstructed by the Appellants, who assaulted on her head. She specifically stated that due to assault she sustained five bleeding injuries on her head and fell down senseless. She regained sense at Ghashipura Hospital. P.W.3, who is the daughter of the informant (P.W.1) and the daughter-in-law of the deceased, is an eye witness. She corroborated the statement of P.W.2 with regard to the assault and the complaint made by before her grandfather. She specifically stated that Appellant -Mana assaulted the deceased with a square wooden stick and Appellant Dwari assaulted him with the wooden handle of an axe to his head. Due to such assault, the deceased fell down with bleeding injury on his head. Nothing has been elicited from her by the defence during cross-examination. P.W.4, another grand-daughter of the deceased, specifically stated that on 8.3.1998 at about 8.00 A.M. the incident took place in front of the house of Appellant-Dwari. Her sister Soudamini (P.W.3) had been to the village well to wash vegetables. She was assaulted by the Appellants. She (P.W.3) reported the matter before the deceased, who went up to the well to enquire into the same. There the deceased was assaulted on his head by the Appellants. After assaulting the deceased, Appellants chased after her and P.W.3. This witness fully corroborated the statement of P.W.3. Nothing has been elicited from her cross-examination by the defence. P.W.5, one of the co-villagers has not stated anything about the prosecution case. P.W.6, another co- villager is a witness to the seizure of some clothes. P.Ws. 7 and 8 are witnesses to the inquest. P.Ws. 9 and 10 are witness to the seizure of M.Os'.l and II (two wooden sticks). P.W.5, one of the co-villagers has not stated anything about the prosecution case. P.W.6, another co- villager is a witness to the seizure of some clothes. P.Ws. 7 and 8 are witnesses to the inquest. P.Ws. 9 and 10 are witness to the seizure of M.Os'.l and II (two wooden sticks). P.W. 11 is the doctor attached to the Community Health Centre, Sainkul, who examined the deceased and the injured (P.Ws. 1, 2 and 3). P.W.12 is the doctor, who conducted autopsy of the dead body and found the following external injuries: (i) Lacerted wound on the inner side of left nostril of size 1 cm. x 1/4 cm. x sk in breadth, antimortem in nature. (ii) One lacerated wound on the inner side of right side cheek 1 cm. x 1/2 cm. x 1/8 cm. antemortem in nature. (iii) One stitched wound on the left parietal bone after cutting open the stitches the depth was scalp depth, it was 4" long and half inch wide. Lacerated wound. (iv) Fracture of left Parietal bone 4" long x whole thickness of bone and 1/4" depth. (v) Lacerated wound on the right ear pinna 1cm x 1/4 cm x 1/4 cm. (vi) Black eye of the left side. (vii) Haematoma over the left mastoid 1" in diameter and 1/4" in height. He opined that the cause of death was due to multiple injuries, mainly the head injury, caused by hard and blunt object. P.W.13 is a Constable who produced the wearing apparels of the deceased before the O.I.C. P.W.14 is the wife of the deceased. She corroborated the statement of P.Ws. 3 and 4 and also stated that when her husband protested against the assault given by the Appellants on P.W.3, there was exchange of hot words, in course of which both the Appellants assaulted the deceased on his head. Appellant-Mana assaulted him with a square wooden rod and Appellant-Dwari with the handle of an axe. Thereafter, both the Appellants chased her grand daughter (P.W.4). From her cross-examination nothing has been elicited by the defence. P.W. 15 is a co-villager and a post occurrence witness. P.W. 16 is the Circle Inspector and the I.O. of the case. D.W.1 is a co-villager and the Ward member of that village. Thereafter, both the Appellants chased her grand daughter (P.W.4). From her cross-examination nothing has been elicited by the defence. P.W. 15 is a co-villager and a post occurrence witness. P.W. 16 is the Circle Inspector and the I.O. of the case. D.W.1 is a co-villager and the Ward member of that village. He stated in his evidence that he had seen Muralidhar Jena and Natha Dalei physically bringing the deceased-Babaji Behera from the mines after he was injured by dashing broken stone pieces to his head. He was having cut injury extending over his fore head with profuse bleeding. 9. This Court has carefully scrutiniseo the evidence of the prosecution witnesses as well as the defence witness. P.Ws. 1 to 4 and 14 have given the vivid description of the occurrence. They are eye witnesses to the occurrence and the defence has not been able to elicite anything from them to discredit their version. Of course, some minor discrepancies are there in their statements, but that will not affect the prosecution case. Their evidence is clear and cogent and there is no reason to disbelieve them. An argument has been advanced that they being relations of the deceased are interested for the prosecution and, therefore, their version should not be taken into consideration. But, law is well settled that on the ground of mere relationship, the version of a witness should not be discarded. Therefore, the evidence of P.Ws. 1 to 4 and 14 cannot be thrown over board. Though a suggestion has been given to each of the witnesses that the case has been instituted due to enmity, they have stoutly denied the same. Nothing has been produced or adduced by the defence with regard to the enmity between the families of the deceased and the Appellants. Moreover, the evidence of P.W. 14 is very clear that there was cordial relationship between the two families. 10. There is no dispute that both the Appellants are the author of the injuries on the person of the deceased. P.W. 1 lodged the F.I.R. immediately after the occurrence and next day the F.I.R. was received by the S.D.J.M. Thus, there is no delay in lodging the F.I.R. and despatching the F.I.R. But in the instant case, no pre meditation on the part of the Appellants to murder the deceased has been proved by the prosecution. The evidence of RWs. P.W. 1 lodged the F.I.R. immediately after the occurrence and next day the F.I.R. was received by the S.D.J.M. Thus, there is no delay in lodging the F.I.R. and despatching the F.I.R. But in the instant case, no pre meditation on the part of the Appellants to murder the deceased has been proved by the prosecution. The evidence of RWs. 1 to 4 and 14 is clear that in course of an altercation, the Appellants assaulted the deceased. Thus, the act committed by the Appellants does not come under the purview of Section 302, I.P.C. But, in the facts and circumstances of the case, they are liable u/s 304, Part-I, I.P.C. 11. For the reasons stated above, this Court sets aside the Judgment and order of conviction of the Appellants u/s 302, I.P.C. Instead, this Court convicts them u/s 304, Part-I, I.P.C. and sentences them to undergo R.I for ten years. So far as their conviction and sentence u/s 307, I.P.C. is concerned, this Court does not see any reason to interfere and the same is accordingly confirmed. Both the sentences shall run concurrently. 12. Mr. Das, Learned Counsel for the Appellants submits that the Appellants are in custody and have served out more than ten years of imprisonment. If that is so, they be set at liberty forthwith unless their detention is required in any other case. 13. The appeal is disposed of accordingly. L. Mohapatra, J. 14. I agree.