JUDGMENT : A.S. Naidu, J. - The Appellants seek to assail the judgment and order of conviction and sentence passed by the learned Sessions Judge, Dhenkanal, Angul convicting them under Sections 302/34 I.P.C. and sentencing to undergo R.I. for life in S.T. No. 187 of 1993. 2. On 29.5.1993 Bijay Naik (P.W.2) lodged an information at Sadar Police Station, Dhenkanal alleging that the Appellants abused Nityananda Naik, the father of the informant on 28.5.1993 at about 10.00 A.M. and questioned him with vengeance as to why he agreed to cultivate the lands of Jubuli Babu, which were earlier cultivated by them on 'Bhag' basis. On the same day at about 7.00 P.M. the accused persons being armed with Kati. thenga and Pharsa came to the house of Nityananda, dragged him out of his house and assaulted him by means of those weapons as a result of which Nityananda fell down on the road sustaining bleeding injuries. On the intervention of villagers who rushed to the spot, the accused persons fled away. Thereafter, Nityananda was removed to Sadar Hospital, Dhenkanal where at about 10.00 P.M. he succumbed to the injuries sustained by him. On the basis of such report which was treated as an F.I.R. vide Ext.1, the Investigating Officer went to the spot, examined the witnesses, made inquest over the dead body at Sadar Hospital vide Ext.5, sent the dead body for autopsy examination, sent Ranjan Nayak, Anr. son of the deceased (who has died in the meanwhile) for medical examination, seized the incriminating materials like blood stained earth, sample earth, one hawai chapal etc. vide seizure list Ext.7, seized wearing apparels of the deceased as per Ext.8, arrested the accused persons and after completing investigation submitted charge sheet in the Court of the learned S.D.J.M. Dhenkanal in G.R. Case No. 291 of 1993. Learned S.D.J.M. after going through the records and on being satisfied that a prima facie case is made out, took cognizance of the offences and committed the case to the Court of Sessions for trial. 3. The plea of the defence was mainly denial. Learned S.D.J.M. after going through the records and on being satisfied that a prima facie case is made out, took cognizance of the offences and committed the case to the Court of Sessions for trial. 3. The plea of the defence was mainly denial. Accused Jaya Naik in his statement u/s 313 Code of Criminal Procedure took a specific stand that on the date of occurrence while he was walking an the village road by the side of Nityananda, the latter as well as his sons Bijay and Ranjan attacked him and Nityananda dealt Kati blows causing cut injuries on his head, while his son dealt a lathi blow on his head. Having sustained injuries on his person he could manage to escape from the place, but then without noticing the said fact in the darkness, both Bijaya and Ranjan assaulted their father Nityananda mistaking him to be the accused Jaya consequently he died. 4. To establish its case the prosecution got eight witnesses examined. Out of them P.Ws.2 and 4 were the eyewitnesses to the occurrence. P.W.1 though made a statement before the police u/s 161 Code of Criminal Procedure that he had seen the occurrence but then did not support the prosecution case. Consequently he was declared hostile. P.W.5 is the wife of the deceased and was a post occurrence witness. P.W.3 was the doctor who conducted the postmortem examination on the dead body. P.W.8 was the doctor who examined injured Ranjan, son of the deceased and accused Jaya. P.Ws.6 and 7 were police officers who took some part in course of investigation of the case. On behalf of the defence one witness was got examined. 5. After threadbare discussion of the evidence the learned Sessions Judge arrived at a conclusion that the prosecution was not able to establish the offence u/s 324 I.P.C. against the accused persons and acquitted them from the said charge. However, on the analysis of the evidence both oral and documentary learned Sessions Judge further held that the accused persons had assaulted Nityananda by sharp cutting weapons thereby causing his death and as such they cannot escape the mischief of committing murder and convicted them u/s 302 read with Section 34 of I.P.C. 6. However, on the analysis of the evidence both oral and documentary learned Sessions Judge further held that the accused persons had assaulted Nityananda by sharp cutting weapons thereby causing his death and as such they cannot escape the mischief of committing murder and convicted them u/s 302 read with Section 34 of I.P.C. 6. The findings are assailed before this Court mainly on the ground that the learned Sessions Judge acted illegally in overlooking the omissions and contradictions of the statements of so called eyewitnesses and thereby committed gross error. It is further submitted that P.W.2 is the son of the deceased and P.W.4 is the near relative, the learned Sessions Judge therefore acted illegally in relying upon their evidence in site of the fact that several other villagers were present at the spot but they were not examined. The third contention of learned Counsel for the Appellants is that though P.W.4 claims to be an eyewitness to the occurrence he had not stated anything about the individual role played by different Appellants at the time of occurrence and had made vague statement, thus his evidence invites no credence. It is further submitted that the learned Sessions Judge acted illegally in not calling upon the prosecution to establish as to how Appellant No. 1-Jaya Nayak sustained injuries. Failure on the part of the prosecution to explain the injuries caused to the accused, establishes that the prosecution had not come to the Court with clean hands and there was suppression of truth on the whole. According to learned Counsel for the Appellants the learned Sessions Judge has not properly appreciated the evidence and the judgment and order of sentence suffers from the vice of non-consideration of vital facts vis-a-vis improper appreciation of evidence. 7. All these submissions are strongly repudiated by learned Addl.Government Advocate. According to him the prosecution has established the guilt of the accused beyond all reasonable doubts inasmuch as apart from the two eyewitnesses there are also other circumstantial evidence, which clearly establishes involvement of the accused persons with the alleged crime and as such the learned Sessions Judge has not committed any error. 8. To appreciate the arguments of learned Counsel for the parties this Court meticulously went through the evidence both oral and documentary. P.W.3 was the doctor who had conducted postmortem. 8. To appreciate the arguments of learned Counsel for the parties this Court meticulously went through the evidence both oral and documentary. P.W.3 was the doctor who had conducted postmortem. The postmortem report which has been marked as Ext.2 reveals the following injuries :- 1. Incised wound - 11" x 3" (entering into chest cavity on left side infra scapular region. 2. Incised injury - 3" X ?" scalpe deep about 2" above left pina. 3. Incised wound - 3" X 4" X bone deep over left upper arm posterior side. 4. Incised injury - 5" X 3" X bone deep over right forearm outer aspect. 5. Incised injury - 3" X 2" X bone deep over right forearm. 3" below elbow joint. 6. Incised wound - 5" X 3" X bone deep over front side of upper chest (right side). The doctor has opined that all the injuries were ante mortem in nature and might have been caused by hard and sharp cutting weapons. After examining the weapon (M.O.-I) he has opined that the injuries could be possible by it. His opinion has been market das Ext.3. He has further opined that the external injuries were fatal in ordinary course of nature to cause the death. The medical evidence thus admits no room for doubt that the death of Nityananda was homicidal in nature. 9. So far as involvement of the accused persons is concerned the prosecution mainly relied upon the evidence of two eyewitnesses P.Ws.2 and 4. P.W.2 is the son of the deceased. According to him the occurrence took place at about 10.00 A.M. when Appellant No. 1-Jaya Naik abused his father and challenged him as to why he a had agreed to cultivate the lands of Jubuli Babu, which were earlier being cultivated by him on 'Bhaga' basis. It is stated that thereafter at about 7.00 P.M. accused Jaya Naik along with other accused persons came to his house armed with deadly weapons and abused his father in filthy language, dragged him out of the house to the village road and thereafter accused Jaya dealt a 'Kati' blow on his head whereas accused Abhaya dealt a 'Tangi' blow on his head. Simultaneously accused Saita dealt a 'Pharsa' blow on the left side back of Nityananda and accused Laxmidhar dealt a 'Kati' blow to the right side belly. Simultaneously accused Saita dealt a 'Pharsa' blow on the left side back of Nityananda and accused Laxmidhar dealt a 'Kati' blow to the right side belly. After receiving the above injuries his father fell down on the ground. Hearing the commotion the villagers assembled and seeing them the accused persons fled away, This witness has also specifically stated that when his brother Ranjan Naik (since dead) tried to intervene, accused Saita assaulted him. P.W.2 has been cross-examined in extenso but then defence totally failed to elicit anything contrary to the statement made by him in his examination in chief. 10. P.W.4 was Anr. eyewitness. He happens to be the co-brother in law of Nityananda. He had come to the house to take paddy and was present when the occurrence took place. He has also given vivid description with regard to the assault. He was also cross-examined in extensobuX nothing could be brought out to discredit his evidence. The evidence of this witness is challenged by learned Counsel for the Appellants only on the ground that he has no specifically stated the weapons which the accused persons were holding individually or the role played by them but then an overall reading of the evidence of P.W.4 inspires confidence that he has seen the occurrence and has given vivid description. It is well settled that after long stretch of time a witness is not expected to describe the occurrence and give an identical account of what happened and minor discrepancies are bound to occur in human testimonial specially with lapse of time. 11. P.W.5 was the widow who had arrived just after the occurrence. She has not seen the occurrence. Apart from the aforesaid witness other circumstances also point a finger at the accused persons. 12. After going through the evidence this Court is satisfied that the learned Sessions Judge has not committed any error and the conclusions arrived at are just and proper. The submission that the witnesses being relatives their statements could not be believed is not a sound principle of law. On the other hand it is well settled that the close relatives are better witnesses than Ors. as their sole aim would be to get the real accused convicted. The submission that the witnesses being relatives their statements could not be believed is not a sound principle of law. On the other hand it is well settled that the close relatives are better witnesses than Ors. as their sole aim would be to get the real accused convicted. In view of the discussions made above, after going through entire evidence this Court is satisfied that the prosecution has established the case beyond all reasonable doubts so far as the accused persons are concerned. 13. The only other point, which needs to be discussed, is as to under what offence the Appellants are liable to be convicted. Admittedly Appellant No. 1-Jaya Naik is an old man. His present age would be near about 71 years. He is in custody for about seven years. Similarly all other accused persons are in custody for about ten years. It appears that the accused persons and the deceased were related to each other. The dispute cropped up when Nityananda deceased) agreed to cultivate the lands which the accused persons were cultivating on "Bhaga" basis for some past ears. Being enraged by the said fact they came to the house of Nityananda and assaulted him. Thus it is very clear that the accused persons had committed the offences with the intention of causing death or causing such bodily injuries, which was likely to cause death, but then the same was caused due to grave and certain provocation, i.e. being enraged by the fact that Nityananda had snatched away the bread and butter from the hands of the accused persons by agreeing to cultivate the lands, which they were cultivating on 'Bhaga' basis in the past years. 14. In the above said scenario, this Court feels that the order of conviction u/s 302 I.P.C. should be set aside and instead the accused should be convicted u/s 304 Part-I I.P.C. Accordingly, the appeal is allowed in part, the impugned judgment convicting the Appellants u/s 302 I.P.C. is set aside and instead they are convicted for commission of offence u/s 304 Part-I I.P.C. Considering the fact that Appellant No. 1-Jaya Naik is an old man in his late 70's and has undergone imprisonment for seven years and all other accused persons have undergone imprisonment for ten years, they are sentenced to undergo rigorous imprisonment for the period they have already undergone. This Court further directs that each of the Appellants shall be liable to pay a fine of Rs.5, 000/- (rupees five thousand only), in default, to undergo R.I. for a period of six months each. On realization of the fine amount, the same shall paid to the family of the deceased. With the aforesaid modification the Criminal Appeal is disposed of. S.C. Parija, J. 15. I agree.