JUDGMENT In the present Jail Criminal Appeal, the appellant has challenged the order of conviction dated 31.1.2004 passed by the Additional Sessions Judge, Boudh in S.T. Case No.28 of 2002 under Section 302, IPC and consequent sentence to undergo imprisonment for life. 2.The prosecution case in brief is that on 19.6.2002 at about 11 A.M. at village Sanabanka Pada, the appellant brutally assaulted Ulapi Kanhar (deceased), the wife of his brother, Rajendra Kanhar by means of a ‘Tangia’ (M.O.I.), as a result of which Ulapi died at the spot, i.e., in her front yard. Thereafter, the appellant left the weapon of offence at the spot and fled away. Subsequently, Jogendra Kanhar (P.W.1), the elder brother of the appellant lodged a written report before the Boudh Police Station. Basing upon the same, the police registered the case and investigated the matter. During investigation, the I.O. examined the informant, visited the spot, prepared spot map, examined other witnesses, seized the weapon of offence and other incriminating materials, prepared seizure list, held inquest over the dead body of the deceased, sent the dead body for autopsy, received the Post-Mortem Examination Report, arrested the appellant, forwarded him to the Court, sent the incriminating materials for Chemical Examination and after completion of investigation, submitted the charge sheet against the appellant under Section 302, IPC. The defence plea is one of complete denial. 3.The prosecution in order to prove charge examined as many as 10 witnesses including the Medical Officer and the Investigating Officer and exhibited 16 documents. In the examination under Section 313, Cr.P.C. the appellant denied all questions. The defence examined one witness and exhibited none. On completion of trial, the Additional Sessions Judge, Boudh convicted the present appellant under Section 302, IPC basing upon ocular witnesses, I.e., P.W.8 and P.W.9 (child witness). 4.Miss Biswal, learned counsel for the appellant assailed the judgment on the following grounds; (i)Genuineness of the F.I.R. is doubtful. Basing upon the same, investigation was initiated and trial was concluded. Therefore, the appellant is entitled for acquittal. (ii)No independent witnesses have been examined and P.W.2, who is one of the occular witnesses to the prosecution case, has not supported the prosecution case. (iii)The case is not coming under the purview of Section 302, IPC. It comes under Section 304 (Part-II), IPC since the occurrence took place due to sudden quarrel between the deceased and the appellant. 5.Mr. (ii)No independent witnesses have been examined and P.W.2, who is one of the occular witnesses to the prosecution case, has not supported the prosecution case. (iii)The case is not coming under the purview of Section 302, IPC. It comes under Section 304 (Part-II), IPC since the occurrence took place due to sudden quarrel between the deceased and the appellant. 5.Mr. Zafarulla learned Additional Standing Counsel vehemently contended that P.Ws.8 and 9 are the ocular witnesses, who specifically stated in their examination-in-chief about the role played by the present appellant, who brutally assaulted the deceased by means of a Tangia to her neck, back and hand. Due to such assault, Ulapi died at the spot. The doctor (P.W.6) conducted the autopsy and found eight injuries on the portion of the body of the deceased. All the injuries were ante-mortem in nature. P.W.10 spoke of seizing M.O.I. from the spot. Thus the evidences of P.W.8 and P.W.9 have been well corroborated. In any way, this case is not coming under the purview of Section 304 (Part-II), IPC. 6.Perused the L.C.R. and gone through the evidence minutely. There is no challenge with regard to homicidal nature of death. P.W.1 is the informant and brother-in-law (dedhasura) of the deceased. In his examination-in-chief he stated that on the date of occurrence at about 11 A.M. when he returned from the agricultural field, he found the dead body of the deceased (Ulapi) lying on the Court-yard. His wife-Sulochana (P.W.2) told about the occurrence. He found bleeding injury on the head and back of the deceased (Ulapi). Immediately he proceeded to the Police Station and lodged a written report, being scribed by one Bisnu Kanhara under his instruction. Ext.1 is the said written report. In his presence, the police held inquest over the dead body of the deceased. The said report is under Ext.2. In the cross-examination, P.W.1 admitted that the deceased Ulapi was the kept of Rajendra (P.W.3). He found the deceased lying near a big pointed stone. One bucket and a cot were there nearby the dead body of the deceased. He did not find any outsider in the vicinity. He found bleeding injury on the head and left side back of Ulapi. The dead body of the deceased was lying about 100 cubits apart from his dwelling house. However, in cross-examination, he stated that he did not know about the contents of Ext.1. He did not find any outsider in the vicinity. He found bleeding injury on the head and left side back of Ulapi. The dead body of the deceased was lying about 100 cubits apart from his dwelling house. However, in cross-examination, he stated that he did not know about the contents of Ext.1. P.W.2 is the wife of P.W.1, who turned hostile and was cross-examined by the prosecution. With regard to P.W.2, P.W.10 (I.O.) stated that P.W.2 had stated before him that in the morning hour of 19.6.2002 all the family members had gone for a field work and that she and Ulapi along with Janmita (P.W.8) and Mendlli were there in the house. At about 11 A.M. Minakhi (P.W.9) daughter of Ulapi (deceased) called her saying that there was a quarrel in between her mother and paternal uncle and that immediately P.W.2 proceeded to the spot and tried to restrain accused Mahendra from quarrel and that she feared seeing tangia in the hand of accused Mahendra and that accused Mahendra assaulted to the front side and back side neck and back of Ulapi (deceased) by means of his tangia and gave about 4 to 5 blows and that getting blows Ulapi fell down on the ground and that the appellant Mahendra murdered Ulapi even in spite of active protest of Janmita (P.W.8) and Mendlli and that the appellant left the tangia there at the spot and fled away. P.W.3 is the brother of the appellant and husband of the deceased (Ulapi). In his examination-in-chief, he stated that in the evening he returned to his house. When he came back, his daughters and other family members began to cry on seeing him. He found stains of blood in his court yard. Then his family members reported him that the appellant assaulted Ulapi to death by means of a Tangia. In the cross-examination, he admitted that his daughters have reported him that the appellant has assaulted the deceased by means of a Tangia. He denied the suggestion given by the defence that there was no such occurrence as alleged and that he deposed all falsehood and that Ulapi (deceased) fell upon a stone and sustained the injuries. P.W.4 was a witness to the seizure and also proved Ext.3. In the cross-examination he admitted that Tangia like M.O.I. was commonly available in all the houses. P.W.4 was a witness to the seizure and also proved Ext.3. In the cross-examination he admitted that Tangia like M.O.I. was commonly available in all the houses. He and one Arjuna Behera and one Basanta Kumbhar (D.W.1) were present at that time of seizure. P.W.5 was a seizure witness and proved the seizure of Saree, Saya, bangles, brata, etc. vide Ext..4. In the cross-examination he admitted that he has not seen the seizure articles. He only put his signature. P.W.6 was the doctor, who conducted autopsy and found the following injuries; “I. One sharp cutting wound of size 12” x 8” into bone depth at neck extending from tip of left shoulder to the sternocleido muscle of the right side of the neck. II. One sharp cutting wound of size 3” x 1.5” x 1” over the tip of right shoulder, III. One sharp cutting wound of size 3” x 5” x 1’ over right side of the chest extending from medial ond of right Clavicle to mid part of the second costal rib. IV. One sharp cutting wound of size 3” x 5” x 1’ over right side of the back extending from tip of right shoulder to tip of the right spine of the scapula, V. one sharp cutting wound of size 3” x 1½” ½” over back extending from seventh servical vertiebra to medil end of tip of right scapula. VI. One sharp cutting wound of size 1” x 1.5” into muscle deep over lateral side of left hand 1 inch above the wrist joint, VII. The 5th and 6th vertibra are discloses with fracture of the both. The spinal cord is transected sharply between the 5th and 6th servical vertebra. VIII. The first and second rib are fractured below injury No.II. Trachea is sharply transected on the 5th and 6th vertebra carofid the vessels and spina vessels are cut completely.” P.W.6 opined that all the injuries were ante-mortem in nature. Muscles below injuries (II), (III), (IV) & V) were cut partially. Death was due to excessive haemorrhage from cut vessels leading to shock. On production of the weapon of offence (M.O.I.) he opined that there were dark blood stains on the wooden handle and the iron part of the weapon. Injuries marked on the dead body of the deceased (Ulapi) to be possible by this weapon. He proved Ext.5, the Post-Mortem Examination Report and Ext.6. On production of the weapon of offence (M.O.I.) he opined that there were dark blood stains on the wooden handle and the iron part of the weapon. Injuries marked on the dead body of the deceased (Ulapi) to be possible by this weapon. He proved Ext.5, the Post-Mortem Examination Report and Ext.6. In the cross-examination, he admitted that injury No.II could be possible if one comes running and falls upon a pointed stone. Injury Nos. (IV), (V) and (VI) could also possible at the time of second fall on multiple sharp edged stones. Death of a person would occur if he sustained injury Nos. (II) to (VI) at a time. P.W.7 was a Constable of Boudh Police Station. In his examination-in-chief he has stated that on reaching the spot he found dead body of the deceased lying on the ground and on Tangia was lying in vicinity. In his presence and in presence of other witnesses, the I.I.C. seized the Tangia. He identified M.O.I. in the Court. In the cross-examination, he stated that there was no special mark of identification of the seized Tangia. P.W.8 is the niece of the appellant and deceased and also the daughter of P.W.3. In his examination-in-chief she stated that his father, Rajendra (P.W.3) had three wives, namely, Bilanka, Suprava and Ulapi (deceased). P.W.8 is the daughter of Suprava. She stated that at about one year and five months back on a particular day in Summer season at about 11 A.M. when she and her sisters, namely, Jayaprada, Jasoda and Minakhi (P.W.9) were playing at the door of their house, the appellant quarreled with Ulapi. Immediately Minakhi (P.W.9) called Bada Maa Sulochana (P.W.2). Then Sulochana (P.W.2) came and tried to pacify the appellant. But the appellant threatened her saying “TO PALA TATE MARI DEBI”. Then the appellant brutally assaulted Ulapi by means of a Tangia on her neck, back and hand. Due to such assault, Ulapi died at the spot. She identified M.Os.I, II and III. In the cross-examination, she admitted that she came to the Court with her father and that at the relevant point time her sisters along with the appellant were there. Ulapi (deceased) and Sulochana (P.W.2) were in their house. She had not seen any other person in the neigbourhood. She and her sister Minakhi (P.W.9) both told Sulochana to restrain the appellant, who was assaulting Ulapi. Ulapi (deceased) and Sulochana (P.W.2) were in their house. She had not seen any other person in the neigbourhood. She and her sister Minakhi (P.W.9) both told Sulochana to restrain the appellant, who was assaulting Ulapi. All the sisters along with P.W.8 also raised protest. In spite of that the appellant assaulted Ulapi and they burst into tears. Sulochana (P.W.2) was also there at the spot. In spite of her protest the appellant assaulted Ulapi. P.W.9 was a child witness to the occurrence. She corroborated the statement of P.W.8. This witness was tested by the trial Court and thereafter in examination-in-chief she stated that one year and five months back, from the date of her examination, on a particular day at about 11 A.M. while she was playing in her house, the appellant quarreled with her mother Ulapi. Immediately she called Sulochana (P.W.2). Sulochana came and forbade the appellant. She told the appellant not to quarrel. But the appellant told her “TATE BI HANI DEBI”. So Sulochana remained silent. Then the appellant brutally assaulted Ulapi by means of a Tangia on her neck, hand, chest, etc. Due to such brutal assault, Ulapi died at the spot. The appellant left the Tangia there and fled away. P.W.9 identified M.Os.I and II. In the cross-examination, she stated in the Court what she had seen. She was playing at the door at the time of occurrence. At the spot, P.W.9 and her three sisters along with Sulchana (P.W.2) were present. But she admitted that she did not know the cause of quarrel. When the appellant threatened Sulochana (P.W.2) she went away but her four sisters were there at about 4 to 5 cubits apart from the spot. Further she admitted that she had seen the appellant giving 4 to 5 blows on her mother. P.W.10 was the IIC of Boudh Police Station. H received the written report and registered the case. He proved the F.I.R. under Ext.1. During investigation, he examined the informant, visited the spot and prepared the spot map and examined other witnesses. He held inquest over the dead body of the deceased in presence of the witnesses. He also seized the blood stained earth and Tangia (M.O.I.). He arrested the appellant. He proved the F.I.R. under Ext.1. During investigation, he examined the informant, visited the spot and prepared the spot map and examined other witnesses. He held inquest over the dead body of the deceased in presence of the witnesses. He also seized the blood stained earth and Tangia (M.O.I.). He arrested the appellant. He sent a requisition to the learned S.D.J.M. to record the statement of the two witnesses, Sulochana (P.W.2) and Janmita (P.W.8) under Section 164, Cr.P.C. In the cross-examination, he has stated that P.W.8 did not state before him that the appellant assaulted the hands of Ulapi by a Tangia and that P.W.9 did not state before him that the appellant assaulted to the hand and chest of her deceased mother. D.W.1 was a labourer. In examination-in-chief, he stated that about 1 and half years back from the date of evidence Ulapi died by falling upon two stones and bucket which were there in front of her house. In the cross-examination he admitted that his house was about 20 cubits apart from the house of the appellant. On being called by Sulochana (P.W.9), he went to the spot where the dead body of the deceased was lying and found that there were bleeding injuries on her head, chest and hands. He further admitted that in his presence the daughters of Ulapi were examined by the police and they stated to police that the appellant brutally assaulted Ulapi by means of a Tangia causing her death. 7.On scrutinizing the evidence, it reveals that P.W.2 retracted from his statement and turned hostile. 8.On scrutinizing the evidences of P.Ws.8 and 9 it is crystal clear that the appellant is the author of the crime. He assaulted brutally the deceased by means of a Tangia. P.Ws.8 and 9 are the nieces of the appellant. As pointed out by the I.O. some minor contradictions are there. Let us not forget that both are rustic girls. But the evidence of P.Ws.8 and 9 are very clear and cogent. With regard to assault part, they corroborate each other and there are no major contradictions. P.Ws.8 and 9 are the nieces of the appellant. As pointed out by the I.O. some minor contradictions are there. Let us not forget that both are rustic girls. But the evidence of P.Ws.8 and 9 are very clear and cogent. With regard to assault part, they corroborate each other and there are no major contradictions. With regard to argument advanced by the Miss Biswal that the F.I.R. is doubtful, this Court minutely scrutinized the evidence of P.W.1 and the F.I.R. After seeing the dead body of the deceased in the front yard, P.W.1 immediately went to the police station and lodged the F.I.R. In examination-in-chief he stated that he lodged the written report being scribed by one Bishnu Kanhar under his instruction. Of course in the cross-examination P.W.1 has stated that he did not know the contents of Ext.1 and Bishnu Kanhar wrote the F.I.R. as per dictation of I.I.C. But a conjoint reading of evidence would make it clear that on finding the dead body of the deceased with bleeding injuries on head and back, P.W.1 had rushed to the Police Station. From this it can safely be inferred that he rushed to the Police Station not without any purpose but to intimate the police about unnatural death of the deceased. On the basis of such information police was duty bond to launch investigation. Learned Court below has rightly held that had it been a case of fabrication, P.W.1 would not have gone to the Police Station. During investigation the police amongst others had examined eye-witnesses like P.W.8 and P.W.9, who ultimately stood their ground during trial. Since the entire incident occurred in the Court yard, P.Ws.8 and 9 were natural witnesses. In such background non-examination of independent witnesses no way affects the prosecution story. It is well settled in the case of Kapileswar Sahu v. State of Orissa reported in (2012) 51 OCR 782 that where the incident takes place in the house the inmates of the house and the near relations would be the best persons to speak of the same. It is not expected that independent person would be there to depose. Evidence of P.Ws.8 and 9 has been corroborated by evidence of P.W.6 who also opined that injuries on deceased were possible by the Axe (M.O.I.). Therefore, there is no material to disbelieve the prosecution case. It is not expected that independent person would be there to depose. Evidence of P.Ws.8 and 9 has been corroborated by evidence of P.W.6 who also opined that injuries on deceased were possible by the Axe (M.O.I.). Therefore, there is no material to disbelieve the prosecution case. With regard to contention of Miss Biswal that this is a case coming under Part-II of Section 304, IPC, we reject the same as the same is not covered under any exception to Section 300, IPC. Further it can not be said that the appellant committed the act without any intention to cause death. A perusal of evidence of P.Ws.8 and 9 would make it clear that despite of efforts to dissuade him, the appellant threatened to kill others before assaulting the deceased. Further the repetitive blows inflicted by the appellant on the deceased clearly establish his intention to kill the deceased. For all these reasons, the Jail Criminal Appeal is without merit and is accordingly dismissed. Appeal dismissed.