JUDGMENT : A.S. Naidu, J. - Appellant faced trial for commission of murder of his brother Bhalu Gouda. According to the prosecution story, on 19.5.2002 at about 8 P.M. the informant, Chanchala Gouda (P.W.1) with her daughter Anjana (P.W.3) & son Manu (P.W.5) & husband Bhalu Gouda was returning from Jagannathpur Chhak after closing their tea & tiffin shop. Near their house, the accused approached & challenged Bhalu as to why he had abused him before others & threatened to murder him. He went inside his house, brought out a 'Tangia', dragged Bhalu from the road towards his house & gave a 'Tangia' blow to the left side shoulder, as a result of which, Bhalu fell down. The informant & her children seeing this incident, started crying aloud. Hearing the commotion, one of the brothers of Bhalu, namely, Raibaru came to rescue Bhalu, but the accused also threatened to assault him & he left the place out of fear. At that moment, the younger brother of Bhalu, Sujit Goud (P.W.4) came to the spot & snatched away the 'Tangia' from the hands of the accused. Bhalu died at the spot with bleeding injuries. The informant further alleged that there was previous enmity between the two brothers & some cases were pending. 2. On the basis of the F.I.R. filed at Sadar Police Station, Bhawanipatna, Kalahandi, police case was registered, which was subsequently converted to G.R. Case No. 284 of 2002 of the Court of Learned JMFC, Bhawanipatna. After completion of investigation, charge-sheet was submitted & the case was committed to the Court of Session for trial. 3. In order to substantiate their case, the prosecution got examined 12 witnesses including the two doctors & the I.O. being P. Ws.6,11 & 12 respectively. The prosecution mainly relied upon three eye witnesses, being P. Ws.1,3 & 5, who were widow, daughter & son of Bhalu. P.W. 4 is the brother of the accused & P.W. 2 is the scribe of the F.I.R.P. Ws.7,8 & 9 are constables who were assigned the duties after the incident. P.W. 10 is a post occurrence witness. 4. The plea of the defence was of complete denial. It is stated that the accused was involved in many theft cases in the village & had many enemies & the villagers might have assaulted him. 5. P.W. 10 is a post occurrence witness. 4. The plea of the defence was of complete denial. It is stated that the accused was involved in many theft cases in the village & had many enemies & the villagers might have assaulted him. 5. To substantiate such plea, the defence got examined three witnesses, being the mother of the accused, wife of the accused & one of the villagers. 6. After discussing the evidence in extenso & relying upon the statement of the eye witnesses, which was supported by P.W. 4 & the evidence of the doctor & post mortem report, the Addl. Sessions Judge arrived at a conclusion that the death of Bhalu was homicidal in nature & convicted the accused for commission of offence u/s 302, Indian Penal Code & sentenced him to rigorous imprisonment for life. The said Judgment & order of conviction passed in S.C. No. 104/2 of 2002/2003 is assailed in this Criminal Appeal. 7. Miss. B.L. Tripathy, Learned Counsel appearing for the Appellant strenuously placed all the evidence before this Court. According to her, there is absolutely no evidence connecting the accused Appellant with the alleged crime. Ms. Tripathy further submitted that all the eye witnesses are closely related inasmuch as they are widow, & children of the deceased. They were also not pulling on well with the accused & thus, no credence can be given to those witnesses as they are interested witnesses. It is stated that Raibaru, another brother of deceased Bhalu, who came to the spot at the very initial stage & being threatened by the accused went away from the spot & might have seen the occurrence, has not been examined & therefore, adverse inference should be drawn against the prosecution. That apart, according to Ms. Tripathy there are lots of contradictions, omissions & additions in the evidence of the witnesses & the Learned Sessions Judge relying upon such evidence acted illegality & with material irregularity in holding that the accused alone has committed the crime. The last submission of Ms. Tripathy is that the Learned Addl. Sessions Judge did not appreciate the evidence adduced on behalf of the defence, which reveals that deceased Bhalu had many enemies in the locality being a thief & the villagers might have assaulted him on the date of occurrence. 8. The last submission of Ms. Tripathy is that the Learned Addl. Sessions Judge did not appreciate the evidence adduced on behalf of the defence, which reveals that deceased Bhalu had many enemies in the locality being a thief & the villagers might have assaulted him on the date of occurrence. 8. Learned Counsel for the State, on the other hand, repudiating the submissions made, submitted that only because P. Ws.1,3,4 & 5 are relatives of deceased Bhalu, their evidence cannot be thrown out. According to him, more credence should be given to the evidence of close relatives as their tendency is always to see that the real culprit should not go scot-free after committing the murder. 9. In order to appreciate the inter se arguments of both the parties, we went through the evidence meticulously. P.W. 1 is the wife of the deceased. In her evidence, she has clearly stated that while she was returning along with her husband, son & daughter, the accused near his house, all of a sudden came out, threatened Bhalu, & went into his house, brought a 'Tangia' & dealt a blow to the left side shoulder of the deceased & consequently, he fell down. P. Ws.3 & 5, the daughter & son of Bhalu respectively have corroborated the said facts in their evidence. All the aforesaid witnesses were returning home along with Bhalu & were very much present at the time of occurrence. In spite of exhaustive cross-examination, nothing could be brought out from those witnesses to demolish their statements made in examination-in-chief. Their evidence clearly reveals that the place where the occurrence took place was visible. Only because they are relatives, their evidence cannot be thrown out more so because they were present at the time of occurrence & perusal of the same reveals that the same suffers from no contradictions & is believable. Their evidence is found not only to be consistent but also finds support from the medical evidence. In the case of Madia Naik v. State of Orissa reported in 1998 (14) OCR 325, it has been held as follows: Witnesses related to the deceased cannot be termed as unreliable-Rather, such witnesses would be truthful- Where accused alleges that witnesses are interested, he has to prove their partisan approach-Court is then required to make a careful analysis of the evidence. 10. P.W. 6 is the doctor. 10. P.W. 6 is the doctor. He had conducted the autopsy & found that the injuries were anti mortem & the death was homicidal in nature. The cause of death was due to haemorrhagic shock on account of injury to vital organs & vessels caused by sharp cutting weapons. On being asked, the doctor had opined that the injuries sustained by the deceased could have been caused by the weapon of offence (M.O.I). The evidence of P. Ws.1,2 & 3 gets further fortified by the evidence of P.W. 4, who is none else than the brother of the accused. He arrived just after the occurrence & snatched away the 'Tangia' from the hand of the accused & kept it with him. The said 'Tangia' was seized from his custody by the police. The defence tried to introduce a cock & bull story to the effect that the deceased Bhalu was a thief & he might have been assaulted by the villagers, but then failed to establish the same by any cogent materials. After going through the entire evidence, this Court is satisfied that the prosecution was able to establish the guilt of the accused beyond all reasonable doubt & we find no error in the conclusion arrived at by the Learned Addl. Sessions Judge & confirm the said finding. 11. On a cumulative assessment of the entire evidence, this Court finds that there was enmity between the two brothers, i.e., accused & the deceased Bhalu due to family properties. Certain cases were also pending between them. On the date of occurrence, as it appears, accused was agitated as deceased Bhalu had spoken ill about him & confronted him as to why he spoke against him to outsiders & thereafter out of anger brought out the 'Tangia', M.O.I & gave the blow. The entire scenario of facts thus reveals that the blow by 'Tangia' was given in a heat of passion without any premeditation or thought or any intention. Considering the said facts, this Court feels that ends of justice & equity will be better served if the conviction is modified to one u/s 304, Part-II, Indian Penal Code in stead of Section 302, Indian Penal Code. 12. Considering the said facts, this Court feels that ends of justice & equity will be better served if the conviction is modified to one u/s 304, Part-II, Indian Penal Code in stead of Section 302, Indian Penal Code. 12. Accordingly, the appeal is allowed in part, the impugned judgment convicting the Appellant u/s 302, I.P.C. is set aside instead he is convicted for commission of offence u/s 304, Part-II I.P.C & sentenced to undergo rigorous imprisonment for a period of eight years & to pay a fine of Rs. 2,000 (two thousand) & in default, to undergo rigorous imprisonment for a further period of six months. It is needless to say that the period of imprisonment already undergone would be treated as set off. S.C. Parija, J. 13. I agree. Final Result : Allowed