JUDGMENT : Pradip Mohanty, J. - This appeal is directed against the judgment and order of conviction passed by the Learned Additional Sessions Judge, Dhenkanal convicting the present Appellant u/s 302 of the Indian. Penal Code and sentencing him to undergo imprisonment for life in S.T. Case No. 333 of 2001. 2. The prosecution case, in short, is that on 25.06.1999 at about 4 P.M. the deceased went near the courtyard of the Appellant. Both the deceased and the Appellant quarreled with each other over possession of land belonging to their uncle. All of a sudden the Appellant dealt blows on the head of the deceased by means of a spade which caused injuries to him. The deceased was taken to the hospital on the next day morning and the Doctor declared him dead. The wife of the deceased lodged a report regarding the incident at Gondia P.S. and a case was registered. The I.O. held inquest over the dead body of the deceased, conducted P.M. examination, arrested the accused, examined the witnesses and after completion of investigation submitted charge sheet against the Appellant u/s 302 of the I.P.C. 3. The plea of the accused-Appellant is complete denial of the allegation. In order to prove its case, the prosecution has examined as many as 11 witnesses including the Doctor and the I.O. and exhibited 11 documents and the defence has examined none. 4. The Learned Trial Court after assessing the evidence adduced on behalf of the prosecution convicted the present Appellant u/s 302 of the Indian Penal Code. 5. Mr. Das, Learned Counsel for the Appellant assails the judgment on the ground that P.Ws.8 and 10 are not trustworthy witnesses. P.W.8 is the widow of the deceased and is an interested witness. P.W.10 is the wife of the brother of the deceased. There are lot of contradictions in the statements of the witnesses. There is delay in lodging the F.I.R and prosecution has not explained the delay which is fatal to the prosecution. 6. Mr. Rath, Learned Additional Standing Counsel vehemently contends that the evidence of P.Ws.8 and 10 is clear and cogent. P.W.4 is a post occurrence witness, who has corroborated the statement relating to injury on the person of the deceased. There is no delay in lodging the F.I.R. and the widow of the deceased gave the F.I.R. on the next day of the occurrence. P.W.4 is a post occurrence witness, who has corroborated the statement relating to injury on the person of the deceased. There is no delay in lodging the F.I.R. and the widow of the deceased gave the F.I.R. on the next day of the occurrence. The medical evidence also corroborates the evidence of eye witnesses with regard to the injury on the person of the deceased. The accused led the Police and the witnesses to the place of concealment and gave recovery of the weapon of offence i.e. M.O.I. He also further submitted that this case is not coming under the purview of Section 304 of the Indian Penal Code since he had intention to kill the deceased and gave three blows to his head with a fowda (spade). 7. Perused the L.C.R. P.W.8 is the informant and wife of the deceased. She deposed that occurrence took place near the house of the Appellant. Hearing shout of her husband and the Appellant she came out from her house and saw that the Appellant was standing in his courtyard and her husband (deceased) was standing on the other side of the fence. The Appellant caught hold of her husband and dragged him to his courtyard and dealt three blows with a spade to his head, as a result of which he fell down on the ground. She raised cry. Ward Member Kamala Dehury and witnesses were called to the spot. On the direction of the Ward member the Appellant went to bring a Doctor for treatment of the deceased, but he did not return to the village in that night. On the next day her husband was taken to the hospital at Barapda in a vehicle for treatment. After reaching the hospital the deceased succumbed to the injuries. She also deposed that there was a dispute regarding possession of land between her husband and the Appellant prior to the occurrence for which they were not pulling on well. He went to Gondia P.S. and lodged the F.I.R. and he put her L.T.I. In cross-examination she admitted that she did not mark any special mark of identification on the spade which has been seized in this case. She also admitted in her cross-examination that there was a dispute between the Appellant and her husband, the deceased. He went to Gondia P.S. and lodged the F.I.R. and he put her L.T.I. In cross-examination she admitted that she did not mark any special mark of identification on the spade which has been seized in this case. She also admitted in her cross-examination that there was a dispute between the Appellant and her husband, the deceased. A suggestion was made by the defence that her husband was a goonda type person and he used to quarrel with others, which she denied. P.W.10 is the sister-in-law of the deceased and she is an eye witness to the occurrence. She deposed that on the date of occurrence at about 4 P.M. he was present in her house. Her husband was suffering from ailment and was bed ridden. On hearing the shout from the house of the Appellant, she came outside from her house and found that the Appellant was standing inside the fenced area of his house and the deceased was standing outside the fence. There was exchange of hot words between the deceased and the Appellant. Thereafter the Appellant dealt blows on the head of the deceased by means of a spade as a result of which he sustained injuries on his head and fell down and subsequently he was taken to hospital. In cross-examination she has admitted that the deceased is the brother of her husband and there was dispute between the deceased and the Appellant regarding possession over the land. P.W.1 is a seizure witness. He proves Ext.1. He did not support the prosecution case with regard to leading to discovery u/s 27 of the Evidence Act and the prosecution declared him hostile. P.W.2 is the grandfather of the accused. He heard from one Prahallad Behera that the deceased was assaulted by his grandson, the Appellant. P.W.3 is a witness to seizure of blood stained earth. He admitted the signature in Exts. 1 and 2. In cross-examination he has stated that nothing was seized in his presence. P.W.4 is the brother of the deceased and a post occurrence witness. After he heard about the incident he came to the spot and saw his brother was lying in a cot on the verandah of the accused and the deceased was not able to talk and he saw bleeding injury on the back, neck and both sides of head of the deceased. After he heard about the incident he came to the spot and saw his brother was lying in a cot on the verandah of the accused and the deceased was not able to talk and he saw bleeding injury on the back, neck and both sides of head of the deceased. He learnt from his mother that the accused had gone to bring the Doctor. They waited for the Doctor, but the accused did not return. On the next day the deceased was shifted to Barapada Hospital and the Doctor examined the deceased and declared him dead. In cross-examination he admitted that the Appellant is the son of his elder father and he is living in separate mess and residence. P.W.5 is a Constable, who was issued with command certificate to guard the dead body of the deceased. P.W.6 is the uncle of the Appellant and a post occurrence witness. He deposed that on returning to his house in the evening after tending goats, he found his son was lying with bleeding injuries on his head in front of the house of the Appellant. On being asked the Appellant, who was present there admitted to have dealt blows by means of spade on the deceased and further told him that he would bring a Doctor to treat the deceased. Since he did not bring any Doctor, on the next day morning the deceased was shifted to Barapada hospital and the deceased died after reaching the hospital. In cross-examination a suggestion was given to him that the accused did not disclose before him that he assaulted the deceased by spade, but he denied. He also admitted that there was a dispute between the deceased and the Appellant over possession of the land belonging to late Pitabasia Behera, who was staying in the house of the Appellant prior to his death. The Appellant had done the Sudhi kriya of the said Pitabasa. P.W.7 is the cousin brother of the accused and the brother of the deceased. On the date of occurrence he was in his house. After hearing hulla he came out of his house and saw his brother was lying in front of the house of the Appellant and the Appellant was standing in front of his courtyard. He turned hostile and the prosecution confronted his earlier statement made before the Police. On the date of occurrence he was in his house. After hearing hulla he came out of his house and saw his brother was lying in front of the house of the Appellant and the Appellant was standing in front of his courtyard. He turned hostile and the prosecution confronted his earlier statement made before the Police. He also admitted in the cross-examination that there was a dispute between the deceased and the Appellant regarding possession of the land. P.W.9 is the Doctor who conducted autopsy over the dead body of the deceased and found the following injuries. i) Lacerated wound 2 ? ? 2 ?" ? scalp deep on left occipital region 2 inches behind the left ear. ii) Lacerated injury 2 ?" ? 2" ? scalp deep on right parito occipital area of scalp obliquely 2" from upper border of right ear. iii) Lacerated wound 2" ? 2" on the occipital region of scalp, half inch later to injury No. 1. iv) Lacerated wound 1/4" ? 1/4" ? 1/4" on the palmer aspect of right little finger at its base. He opined that the injuries sustained by the deceased can be possible by blunt side of M.O.I. He proved the P.M. report and his opinion as Exts.7 and 8. In cross-examination he has stated that the injuries present on the deceased cannot be possible by fall on a stony surface and a suggestion was given by the defence that he did not properly examine the dead body of the deceased, but he denied the some. P.W.11 is the I.O. who stated in his evidence that on receiving information from Sriramachandrapur CHC Hospital he made a station diary entry and proceeded to hospital. Thereafter he went to the village of the deceased and received information from the wife of the deceased and he reduced the some to writing, read over and explained the same and obtained LTI of P.W.8. Thereafter he sent the dead body of the deceased for Post Mortem examination, visited the spot, seized wearing apparels of the deceased and arrested the accused. While the accused was in custody he gave a statement before him that he assaulted the deceased with a spade and kept the some inside his house. Thereafter he sent the dead body of the deceased for Post Mortem examination, visited the spot, seized wearing apparels of the deceased and arrested the accused. While the accused was in custody he gave a statement before him that he assaulted the deceased with a spade and kept the some inside his house. So saying he led him and the witnesses to his kitchen room and gave recovery of the spade (M.O.I) which was seized by him under seizure list Ext.1 and after completion of investigation submitted charge sheet against the Appellant u/s 302 of the Indian Penal Code. Some suggestions were given to the witness in cross-examination to which the witness denied. 8. On scanning the evidence, it is crystal clear that P.Ws.8 and 10 are the material witnesses. P.W.8 is the widow of the deceased and P.W.10 is the sister-in-law of the deceased. They deposed that both the deceased and the Appellant near the house of the Appellant and there was exchange of hot words between them. Thereafter the Appellant dealt blows by means of a spade (M.O.I) on the person of the deceased, as a result of which the deceased fell down on the ground receiving bleeding injury on his head. Nothing has been elicited from the cross-examination of P.Ws.8 and 10 to disbelieve their statements in Court. P.Ws.4, 6 and 7 are the post occurrence witnesses. They came to the spot and found the deceased was lying in front of the house of the Appellant. They heard that the accused assaulted the deceased and they admitted that there was a dispute between the Appellant and the deceased over possession of a land. The versions of the interested witnesses cannot be thrown out in view of the decision rendered in the case of Dharanidhar v. State of U.P 2010 S.C. 759. There is also no material to discard the evidence of the Medical Officer. So far as the delay in lodging of the F.I.R. is concerned, all the witnesses waited for the treatment of the deceased since the accused after the occurrence assured the witnesses to bring a Doctor and as he Slid not bring any doctor the deceased was shifted to Barapada hospital on the next day of the occurrence. There is no delay in lodging the F.I.R. as has been explained by the prosecution. There is no delay in lodging the F.I.R. as has been explained by the prosecution. There is no dispute that the Appellant was the author of the crime. 9. On scrutinizing the evidence of P.Ws.8 and 10, it is crystal clear that the occurrence had taken place in a spur of the moment and there was no premeditation. The incident occurred in the courtyard of the Appellant following hot exchange of words between the Appellant and the deceased regarding possession of a land. Therefore, this Court converts the order of conviction of the Appellant to u/s 304 Part-I of the Indian Penal Code instead of Section 302 of the Indian Penal Code and sentence him to undergo R.I. for ten years. 10. In the result, the appeal is allowed in part. Final Result : Allowed