JUDGMENT : A.S. Naidu, J. - The judgment and order of conviction dated 24th June, 1996 passed by learned Sessions Judge, Puri convicting the Appellants u/s 302 of I.P.C. and sentencing them to undergo R.I. for life in S.T. Case No. 366 of 1992 is assailed in this Criminal Appeal. 2. The two Appellants i.e., Purna Chandra Mohanty and Adikanda Mohanty along with Satyaban Mohanty, Pullak Mohanty, Bhagirathi Mohanty, Gopabandhu Mohanty, Surendranath Mohanty and Dillip Kumar Mohanty stood charged under Sections 341/34 of Indian Penal Code. and u/s 302/34 of Indian Penal Code. for committing offence of restraining Hari Mohanty and causing his death in furtherance of their common intention. Purna Ch. Mohanty was further charged u/s 302 of I.P.C. for committing the murder of Hari Mohanty. 3. Bereft of unnecessary details the case of the prosecution in short is that on 14th January, 1992 at about 10 A.M. the informant Niranjan Mohanty (P.W.8) accompanied by his father Hari Mohanty and brothers Ramakarita and Radhanath were digging holes on a piece of Government land by the side of the State High way leading from Nayagarh to Khurda for the purpose of constructing a cycle repairing shop. At that juncture two accused persons, i.e. Purna Chandra Mohanty and Pullak Mohanty came to the place and warned them not to proceed with the work. Consequently, there was exchange of hot words between them. In the meantime accused Satyaban, Adikanda, Bhagirathi, Gopabandhu and Surendra came to the place armed with lath is. Accused Purna dealt a blow on the head of Hari Mohanty with a crow bar being followed by Adikanda and Satyaban also assaulted on the- head and shoulder of Hari respectively. Due to the said assault Hari Mohanty fell down on the ground and lost his sense. It was alleged that when the informant (P.W.8) wanted to rescue his father he was also assaulted by accused Gopabandhu and Purna thereby causing injuries on his buttock and hand. It was further alleged that accused Bhagirathi, Gopabandhu, Pullak, Dillip and Surendra also assaulted Ramakanta and Radhakanta thereby causing injury to their person. 4. While matter stood thus, some of the outsiders intervened and the matter subsided. Thereafter Hari Mohanty was removed to Pandusara P.H.C. and then he was shifted to Nayagarh Hospital for better treatment. P W.8 lodged an F.I.R. before the Itamati Out Post and the O.I.C. of the said PS. 4. While matter stood thus, some of the outsiders intervened and the matter subsided. Thereafter Hari Mohanty was removed to Pandusara P.H.C. and then he was shifted to Nayagarh Hospital for better treatment. P W.8 lodged an F.I.R. before the Itamati Out Post and the O.I.C. of the said PS. registered a case. While matter stood thus, Hari succumbed to the injuries and the case was converted to one u/s 302 of Indian Penal Code. 5. After completion of investigation charge sheet was submitted against eight accused persons and the learned S.D.J.M., Nayagarh on being satisfied, took cognizance of the offence and committed the case to the Court of Session for trial. 6. The plea of the accused persons is complete denial. In their statement recorded u/s 313 of Cr. PC. it is stated that the parcel of land on which Hari Mohanty and his three sons were digging holes forcibly, is a Government land and the same was in possession of the accused persons. They had raised a flower garden and were enjoying the same. It is alleged that the accused persons requested Hari and his sons not to dig holes, but then, Hari insisted for putting a shed inside the garden, consequently there was altercation, which culminated in inter se fight. It is further alleged that the accused persons were assaulted by Hari Mohanty and his three sons sustained grievous injuries. 7. In order to substantiate their case, the prosecution got examined as many as twenty two witnesses. Out of them, P. Ws. 18, 19 and 22 are the I. Os. who investigated the case at different stages. P.W.22, was the I.O. of Crime Branch, who took over investigation and submitted the charge sheet. P.W.17 was the Revenue Inspector of Badapandusara who prepared the spot map, Ext. 17. P.W.9 was the Medical Officer who treated Hari Mohanty at the preliminary stage and noticing his condition to be serious referred him to Sub-divisional Hospital, Nayagarh. P.W.9 had prepared the injury report, Ext. 4., P.W.10 was the doctor, who treated Hari Mohanty at Nayagarh Hospital. P.W.11 was another doctor who also attended Hari Mohanty. P.W. 13 was the doctor who had examined the accused persons and found injuries upon them. P.W.9 had prepared the injury report, Ext. 4., P.W.10 was the doctor, who treated Hari Mohanty at Nayagarh Hospital. P.W.11 was another doctor who also attended Hari Mohanty. P.W. 13 was the doctor who had examined the accused persons and found injuries upon them. P.W.16 was the doctor who conducted autopsy and opined that all the injuries sustained by Hari Mohanty were ante mortem in nature and were fatal in ordinary course of nature, having been caused on the vital parts of the body. P. Ws. 1 to 6 and 8 were the occurrence witnesses. P.W. 7 deposed that two years prior to the occurrence there was dispute between the accused Purna and Hari (deceased) over the boundary of their lands. P.W.15 was the S.I. of Mangalabag P.S. who produced the extract of the U.D. case register. 8. Learned Sessions Judge after vivid discussion of the evidence, both oral and documentary, held that the two accused persons namely, Purna and Adikanda were guilty of commission of the offence u/s 302 of I.P.C. and convicted them there under. Learned Sessions Judge further held that the prosecution had totally failed to establish that other accused persons were in any way guilty of the offence and acquitted them u/s 235(1) of the Code of Criminal Procedure 9. The said order of conviction and sentence is assailed in this Criminal Appeal mainly on the ground that the learned Sessions Judge had not properly appreciated the evidence inasmuch as he had not taken into consideration the fact that the land over which Hari and his two sons wanted to construct a shed was in exclusive possession of the accused persons and they had a right to protect their possession. It is further submitted that learned Sessions Judge having disbelieved the major part of the prosecution case and having acquitted six accused persons from all charges, acted illegally and with material irregularity in convicting the two accused persons on the basis of same set of evidence. 10. Further according to Miss Ratho, learned Counsel appearing for the Appellants, learned Sessions Judge failed to appreciate that the F.I.R. story was an exaggerated one and there were lot of discrepancies between the evidence of different witnesses. 10. Further according to Miss Ratho, learned Counsel appearing for the Appellants, learned Sessions Judge failed to appreciate that the F.I.R. story was an exaggerated one and there were lot of discrepancies between the evidence of different witnesses. Further, it is submitted that the prosecution having failed to explain the injuries sustained by the accused persons, the Sessions Judge acted illegally in not drawing adverse inference and not extending the benefit of doubt in favour of the Appellants. 11. The aforesaid submissions are strongly repudiated by Mr. Mishra, learned Counsel for the State. According to him the Sessions Judge has discussed the evidence in extenso and the reasonings given by him and the conclusions arrived at are just, proper and in consonance with the evidence and as such the order of conviction and sentence may not be interfered with. 12. To appreciate the arguments advanced, this Court went through the entire evidence meticulously. Admittedly, the F.I.R. was filed against eight accused persons and after completion of investigation charge sheet was also.submitted against those eight accused persons. Learned Sessions Judge after discussing the evidence had acquitted six of them, but then had convicted the two Appellants u/s 302 of I.P.C. The order of acquittal has not been assailed and has attained finality. Perusal of the evidence further reveals that the land over which the occurrence took place belongs to the State Government. Thus, neither the Appellants nor Hari Mohanty had any right, title or interest over the same. However, according to the accused persons they were in possession of the lands and have raised a flower garden and Hari Mohanty and his two sons forcibly trespassed into the said land and tried to construct a shed, which was protested. 13. There were altogether seven eye witnesses to the occurrence being P. Ws. 1 to 6 and 8. Out of them P. Ws. 2,4 and 8 are the sons of Hari Mohanty and Ors. were independent witnesses. Miss Ratho submitted that P. Ws. 2, 4 and' 8 being interested witnesses, learned Sessions Judge should not have relied upon their evidence. But then law is well settled that close relatives are the best witnesses and if their evidence is believed and found to be reliable, the same can be the basis for conviction. were independent witnesses. Miss Ratho submitted that P. Ws. 2, 4 and' 8 being interested witnesses, learned Sessions Judge should not have relied upon their evidence. But then law is well settled that close relatives are the best witnesses and if their evidence is believed and found to be reliable, the same can be the basis for conviction. It is no more res integra that the relatives of the deceased would.always try to see that the real accused do not escape the punishment. They would also be slow to depose against a person who has not committed the offence, unless of course there are compelling circumstances. 14. Be that at it may, in the case in hand, apart from the three sons of the deceased there are other eye witnesses, who are not only natural witnesses being the persons of the locality, but also independent, having no nexus with any of the parties. The evidence of the said witnesses clearly revealed that on 14th January 1992 which was a "Makar Sankranti Day", Hari Mohanty tried to construct a shed on a piece of Government land along with two of his sons. At that juncture accused Pullakh arrived at the spot and questioned them as to what they were doing. Pullak was followed by his father Purna. Hari and his sons replied that they were constructing a shed for opening a cycle repair shop. Pullak cautioned them and asked them not to make any construction as the land was in their possession and they had raised a flower garden. However, Hari Mohanty did not pay any heed to such objections. In the mean time the other accused persons arrived at the spot and at the instance of Pullak, accused Satyaban assaulted Hari by means of a lathi and accused Purna picked up a crow bar lying at the spot and gave a blow on the head of Hari resulting in bleeding injury. When sons of Hari tried to prevent Purna they were also assaulted by Adikanda. The medical evidence clearly revealed that Hari sustained as many as seven injuries. According to P.W.16, the doctor who conducted the autopsy opined that all the injuries were ante mortem in nature and the cause of death was due to coma as a result of cranio cerebral injuries. The medical evidence clearly revealed that Hari sustained as many as seven injuries. According to P.W.16, the doctor who conducted the autopsy opined that all the injuries were ante mortem in nature and the cause of death was due to coma as a result of cranio cerebral injuries. In the F.I.R also it was alleged that the accused Purna picked up a crow bar lying on the ground and gave a blow on the head of Hari. It is further stated that both Satyaban and Adikanda also assaulted Hari. Learned Sessions Judge after discussing the evidence came to the conclusion that the prosecution had failed to establish their case against other accused persons except the two Appellants as stated earlier and the said finding has attained finality. 15. After going though the evidence, this Court finds that the reasonings given and the discussions made by learned Sessions Judge do not suffer from any infirmity. Perusal of the evidence of all eye witnesses makes it crystal clear that the accused. Purna picked up the crow bar lying on the ground and assaulted with the same on the head of Hari and the said injury was a fatal one. The statement of all the eye witnesses was consistent with regard to the act of Appellant Purna. Thus, this Court finds no reason to interfere with the findings of the learned Sessions Judge that Purna was the author of the crime and was responsible in causing the death of Hari Mohanty by assaulting him on the head by means of a crow bar. 16. Scanning of the evidence further reveals that-Purna had not brought the crow bar with him. In fact, it appears that the crow bar was brought by Hari and his two sons for the purpose of digging holes. On the spur of the moment and in course of altercation without any prior intention or premeditation, it appears, Purna picked up the crow bar lying on the ground and gave a blow with the same on the head of Hari. Miss Ratho tried to make out a case of right of private defence. According to her both the Appellants were in possession of the lands and as Hari and his two sons trespassed into the same, to protect their rights they objected, consequently a quarrel ensued. Miss Ratho tried to make out a case of right of private defence. According to her both the Appellants were in possession of the lands and as Hari and his two sons trespassed into the same, to protect their rights they objected, consequently a quarrel ensued. But then in the statement made by Appellants u/s 313 of Code of Criminal Procedure such a stand was not taken. So far as the injuries sustained by the accused persons are concerned, the case of the parties is that there was a fight between the sons of Hari and the accused persons and the same resulted in injuries. The said fact is apparent from the evidence of different witnesses and the I. Os. 17. In view of the discussions made above, it is apparent that accused Purna had no intention to commit murder of Hari and had not come prepared with any weapons. On the other hand, in course of the quarrel in a heat of passion, picked up the crow bar which belonged to Hari and his sons and was lying on the ground and gave one blow on the head of Hari thereby causing his death. 18. In the aforesaid scenario this Court has no hesitation to hold that the learned Sessions Judge had acted illegally in convicting Appellant No. 2 Purna Chandra Mohanty, u/s 302 of I.P.C. We set aside the said conviction and convict Appellant No. 2 u/s 304, Part-II I.P.C. instead of Section 302 of the I.P.C. and sentence him to undergo R.I. for a period of seven years. It is needless to say that the period of R.I. already undergone would be treated as set off. 19. So far as Appellant No. 1, Adikanda Mohanty is concerned, this Court finds that in the F.I.R no specific overt act has been attributed to him except stating that he had assaulted the deceased. In fact a reading of the F.I.R reveals that Adikanda is similarly placed as Satyaban Mohanty and the Sessions Judge has disbelieved the prosecution case so far as Satyaban is concerned and has acquitted him. 20. However, perusal of the evidence of different witnesses revealed that Adikanda had also taken part in the assault. In fact a reading of the F.I.R reveals that Adikanda is similarly placed as Satyaban Mohanty and the Sessions Judge has disbelieved the prosecution case so far as Satyaban is concerned and has acquitted him. 20. However, perusal of the evidence of different witnesses revealed that Adikanda had also taken part in the assault. Considering the said fact and as the injuries caused by Adikanda were not found to be fatal nor were the cause of death, this Court while setting aside the conviction of Adikanda u/s 302 I.P.C. convict him u/s 323 I.P.C. and imposes a sentence of rigorous imprisonment for the period already undergone by him. 21. With the aforesaid modifications, the Crl Appeal is partly allowed. S.C. Parija. J. 22. I agree. 23. Appeal partly allowed. Final Result : Allowed