JUDGMENT : 1. In the present Jail Criminal Appeal, the appellant has challenged the judgment and order of conviction dated 1.5.2004 passed by the learned Sessions Judge, Dhenkanal in S.T. Case No. 121-D of 1999 u/s 302, IPC and consequent sentence to undergo imprisonment for life and to pay a fine of Rs.1,000/- and in default of such payment, he is to undergo R.I. for a period of three months. This is a case of patricide. The case of the prosecution is that on 21.6.1999 at about 11 A.M. P.W.1 went to their land situated near their house to see whether there was water logging in the land. Prior to that, her father (deceased) had cut the ridge to let off water in order to make the land fit for seedling. P.W.1 found that there was stagnation of water in the land as the cut portion had been closed. Seeing that P.W.1 shouted. Hearing the voice of P.W.1, the deceased went to the land and started abusing. At this, the appellant came with a wooden baton and dealt blows on the head of the deceased for which the deceased sustained injuries. Accused-Achuta went there with a dry palm branch. Thereafter, the deceased was taken to hospital, where he succumbed to the injuries. P.W.2, who is the wife of the deceased, lodged the F.I.R. before Kamakhyanagar Police Station. Police registered the case under Sections 341/294/325/506/34, IPC. The police came to the spot and shifted the injured to the hospital and after one day of the occurrence, the injured succumbed to the injuries. After completion of investigation, charge sheet was filed under Sections 302/34, IPC against the present appellant and accused-Achuta by P.W.5. The plea of the appellant was complete denial. 2. In order to prove the case, the prosecution examined as many as nine witnesses including two doctors and three Investigating Officers and exhibited ten documents. On the other hand the defence examined none. On completion of trial, the learned Sessions Judge, Dhenkanal convicted the present appellant u/s 302, IPC and sentenced him to undergo imprisonment for life basing upon the evidence of P.Ws.1 and 2, who were the eye-witnesses to the occurrence and acquitted Achuta Naik, the other co-accused. P.W.1 is the daughter of the deceased and step sister of the appellant. P.W.2 is the informant and widow of the deceased and step mother of the appellant. P.W.1 is the daughter of the deceased and step sister of the appellant. P.W.2 is the informant and widow of the deceased and step mother of the appellant. P.W.3 is the doctor, who first treated the injured (deceased). P.Ws.4, 5 and 8 are the Investigating Officers. P.Ws. 6 and 9 are the co-villagers and declared hostile. P.W.7 is the doctor, who conducted the autopsy. 3. Mr. Barik, learned counsel for the appellant assailed the judgment of the trial court on the following grounds; (a) The instant case is not coming u/s 302, IPC and it is coming under the purview of Section 325, IPC since the appellant assaulted the deceased by means of a baton which is not a deadly weapon. The doctor (P.W.7) in the cross-examination also admitted that the injuries were possible by fall on hard and rough surface or may also be caused due to dashing against hard and rough substance. (b) There are major contradictions in the evidence of eye-witnesses, who are, moreover interested witnesses, being daughter and widow of the deceased. 4. Mr. Agrawalla, learned Additional Standing Counsel vehemently contends that the evidence of P.Ws.1 and 2 are very clear and cogent. There is no dispute that they are the daughter and widow of the deceased and also the step sister and step mother of the appellant. They specifically told about the role played by the appellant and the medical evidence also corroborates their oral evidence. Mr. Agrawalla further contends that the appellant assaulted on the vital part of the deceased, i.e., head by a baton and gave successive blows. 5. Perused the L.C.R. and gone through the evidence on record carefully. P.W.1 is the daughter of the deceased and step sister of the appellant. In her examination-in-chief she deposed that the present appellant and accused-Achuta are the sons of the deceased through his first wife. After death of first wife, the deceased married her mother (P.W.2). Her father (deceased) has got two issues, i.e., herself and younger brother through the second wife (P.W.2). P.W.1 further deposed that about two and half years back at about 10 A.M. her father (deceased) sent her to their land near their house to see whether there was water logging in the land or not so as to raise seedlings. Her father (deceased) has got two issues, i.e., herself and younger brother through the second wife (P.W.2). P.W.1 further deposed that about two and half years back at about 10 A.M. her father (deceased) sent her to their land near their house to see whether there was water logging in the land or not so as to raise seedlings. Prior to that her father (deceased) had cut the ridge to ensure passage of water so as to make the land fit for raising seedlings. According to the direction of the deceased, she went to the field and saw stacking of water in the land and accordingly she reported the matter to the deceased. Hearing her version, the deceased went to the land and abused saying "SALA MAAGHIA KIA BANDHAICHHI". The house of the appellant and accused-Achuta was close to the land where her father (deceased) was abusing. By that time the appellant came out and told "ASARE BADAIBA". Saying so the appellant assaulted the deceased by means of a wooden baton (M.O.I) having square circumference. The appellant gave blow on the head of the deceased and the deceased sustained bleeding injury. While the appellant was assaulting the deceased, accused-Achuta (acquitted) came with one palm branch (M.O.II) to the spot. P.W.1 deposed that she had not seen the accused-Achuta assaulting the deceased by means of M.O.II. The deceased sustained injuries on his hand, right side face and right side knee. After sustaining injuries due to the blow given by the appellant, the deceased fell down on the ground. P.W.1 had seen the appellant assaulting her father (deceased) by giving blows by M.O.I but she did not remember as to how many blows have been given by the appellant. After the occurrence, her mother (P.W.2) went to the police station and reported the matter. After receipt of the same, the police came to the spot and shifted the injured to the hospital and while under treatment, the injured succumbed to the injuries. In the cross-examination, P.W.1 admitted that prior to the occurrence the appellant and accused-Achuta were not pulling on well with P.W.2 for which the appellant and accused-Achuta were residing in separate mess and property. The deceased and P.W.2 were not linking the appellant and accused-Achuta, who were always quarrelling with the deceased and P.W.2 for the land in which the deceased was trying to raise seedlings. The deceased and P.W.2 were not linking the appellant and accused-Achuta, who were always quarrelling with the deceased and P.W.2 for the land in which the deceased was trying to raise seedlings. P.W.1 further stated that the houses of Bhima Naik, Arjuna Naik and Bula Naik were adjoining to her house. P.W.2 is the widow of the deceased. She corroborated the statement of P.W.1. In her examination-in-chief, she deposed that at the spot, her husband (deceased) abused saying "SALANKU BILABADI DELI JE KHAILE NAHIN KI KHUAI DELE NAHIN". Just after the utterance of these abusive words, the appellant came there saying "ASA SALAKU BADAIBA". At that time, the appellant gave blows to the deceased by a baton lathi (M.O.I). After sustaining the bleeding injury, the deceased fell down on the ground. Thereafter, the appellant chased P.W.2 to assault her and accordingly, she left the place. She had also seen the accused-Achuta standing nearby with M.O.II (palm branch). P.W.2 went to the police station by walking with her two children which was at a distance of 4 to 5 miles from her house. It took four to five hours to reach the police station. She proved the F.I.R. under Ext.1. Thereafter, the police came to the spot and shifted the injured to Kamakhyanagar Hospital. While under treatment, the injured told the police that his son-Budhimanta (appellant) had assaulted him and accordingly, the police recorded the statement of the injured in presence of P.W.2. While undergoing treatment, the injured succumbed to injuries. On the next day of the death of the deceased and in presence of the witness in the hospital, the police prepared inquest report. P.W.2 proved the inquest report under Ext.2. In the cross-examination, P.W.2 admitted that the appellant chased to assault her and being afraid of, she left the spot with her children. Prior to her marriage, the appellant had married. The appellant and accused-Achuta were living separately from the deceased. The deceased was cultivating one MANA of land. The appellant and accused-Achuta and their brother were cultivating one MANA of land. P.W.2 and the deceased have got only one piece of land to raise seedlings and that land was adjoining to the house of the appellant and accused-Achuta. The appellant and accused-Achuta were living separately from the deceased. The deceased was cultivating one MANA of land. The appellant and accused-Achuta and their brother were cultivating one MANA of land. P.W.2 and the deceased have got only one piece of land to raise seedlings and that land was adjoining to the house of the appellant and accused-Achuta. P.W.2 further admitted in the cross-examination that all the good cultivable lands in which paddy plantation was made were being cultivated by her deceased husband and the appellant and accused-Achuta were cultivating land of inferior quality. Prior to the occurrence, the appellant and accused-Achuta were not pulling on well with P.W.2 and the deceased. She admitted that her husband (deceased) started abusing aiming at the appellant and accused-Achuta. She has also admitted that she was instigating the deceased to give the piece of land where the occurrence took place to her son Adwaita. P.W.3 was the Surgery Specialist of Sub-Divisional Hospital, Kamakhyanagar. In his examination-in-chief he stated that when the matter was referred to him, he provided treatment to the patient. While undergoing treatment, the injured succumbed to the injury on 22.6.1999 at 9 A.M. Thus, he informed the matter to the Kamakhyanagar police. He proved the report under Ext.3. In the cross-examination, he admitted that without referring the bed head ticket, he could not say the age of the injury of the injured and the number of the injuries sustained by the deceased. In further cross-examination, he admitted that the head injury could be caused by dash against a hard substance or bamboo rafter or sal beam/rafter with some force. If a person came rushing or running, dashed against the aforesaid objects, he could sustain head injury, which was sufficient to cause his death. Abrasion or bruise can be caused by impact of any hard surface. P.W.4 is the A.S.I. of Kamakhyangar Police Station. In his examination-in-chief he stated that on 21.6.1999 P.W.2 presented a written report before him alleging that her husband (deceased) was killed by the appellant and accused-Achuta. As the report revealed a cognizable offence, he handed over the F.I.R. to the O.I.C., who registered the case and directed him to take up investigation. During course of investigation, he examined P.W.1 and the informant (P.W.2) and proceeded to the spot. He shifted the injured to the hospital. As the report revealed a cognizable offence, he handed over the F.I.R. to the O.I.C., who registered the case and directed him to take up investigation. During course of investigation, he examined P.W.1 and the informant (P.W.2) and proceeded to the spot. He shifted the injured to the hospital. After examining the injured, he prepared the injury requisition and sent the same to the doctor along with the injured. He also recorded the statement of the injured. While under treatment, the injured succumbed to the injuries. The deceased had stated before him that the appellant after abusing the deceased assaulted him by means of a lathi for which he fell down on the ground sustaining bleeding injury on his head. Further he stated that the deceased had stated before him that the appellant also assaulted him by means of a palm branch. P.W.4 proved the statement of the deceased under Ext.4. On 22.9.1999 he handed over the charge of investigation of this case to the O.I.C. In the cross-examination, he admitted that the spot was at a distance of about 5 kms. from the police station. He further admitted that the statement of the deceased which was recorded by him was not a dying declaration. He recorded the statement of the deceased in absence of any independent witnesses. He further stated that neither P.W.1 nor P.W.2 had stated before him that the appellant said "ASARE SALAKU BADEIBA". P.W.5 was the O.I.C. of Kamakhyangar Police Station. He registered the case, investigated the matter and also received report from the doctor and sent the dead body of the deceased for post mortem examination. He also examined some material witnesses. He arrested the appellant and accused-Achuta on 24.6.1999 and interrogated them. He recovered the material objects, i.e., baton (M.O.I), Palm branch (M.O.II). Ultimately after completion of investigation, he submitted the charge sheet under Sections 302/34, IPC against the appellant and accused-Achuta. P.W.6 is the co-villager, who turned hostile. He was confronted with his previous statement but he declined to have stated the same. In the cross-examination, he admitted that the deceased was a rowdy man. P.W.7 is the doctor, who conducted the autopsy and found the following injuries; "External Injuries: 1. One laceration injury of size 2" x 0.3" x bone depth over the left front-parietal region of scalp 1/2" lateral to sagittal line. 2. In the cross-examination, he admitted that the deceased was a rowdy man. P.W.7 is the doctor, who conducted the autopsy and found the following injuries; "External Injuries: 1. One laceration injury of size 2" x 0.3" x bone depth over the left front-parietal region of scalp 1/2" lateral to sagittal line. 2. On superficial scratch over right temporal region of the scalp. 3. One swelling of size 2" x 2" over right temporal region of scalp above the pinna of right ear, blue in colour. 4. One scratch over medial aspect of right knee joint." P.W.7 opined that all the injuries were ante-mortem in nature and might have been caused by hard and heavy blunt weapon. Injury Nos. 1 and 3 were grievous in nature and injury Nos. 2 and 4 were simple in nature. On analysis, he found that there was separation of right front-parietal suture of skull with intracranial haemotama over right frontal and temporal loaf of brain, mangiges congested with haemorrageal fluid and right temporalish muscle turned and with haemotoma. He further opined that the cause of death was due to massive intracranial haemorrhage and shock due to injury to skull, brain and its membrances. The injuries were fatal in ordinary course of nature to cause death. He proved the post-mortem report under Ext.10. On query, he opined that the injuries found on the body of the deceased could have been caused by the weapon of offence. In the cross-examination, he admitted that the injuries were possible by fall on hard and rough surface or may also be caused due to dashing against hard and rough substance. He further admitted that if immediate treatment would have been given to the deceased, there was chance of survival. P.W.8 is a part Investigating Officer. In the cross-examination, he admitted that he had not done anything in the investigation of this case. P.W.9 is the co-villager. He was declared hostile. In his examination-in-chief, he deposed that the deceased while chasing the appellant and accused-Achuta, dashed against a bamboo rafter of a roof. So the deceased sustained injury on his head. Thereafter, the prosecution filed a petition u/s 154 of the Indian Evidence Act to examine this witness. P.W.9 was confronted with his previous statement but he denied to have made the same. So the deceased sustained injury on his head. Thereafter, the prosecution filed a petition u/s 154 of the Indian Evidence Act to examine this witness. P.W.9 was confronted with his previous statement but he denied to have made the same. In the cross-examination, he admitted that after the deceased Arakhita sustained a head injury due to dash against the bamboo rafter, he got up and went to the disputed field. His head was still bleeding. The deceased was a tall man having strong body built. The villagers were afraid of him. 6. Undisputedly, the death of the deceased was homicidal in nature. From the evidence of P.Ws.1 and 2 it is clear that despite being the father, the deceased abused the appellant and accused-Achuta in filthy language and thereafter, the present appellant dealt a blow on the head of the deceased, as a result of which the deceased fell down on the ground. The appellant gave successive blows. The occurrence took place at 11.30 A.M. and the F.I.R. was lodged at 5.30 P.M. Thereafter, the police came and shifted the injured (deceased) to the hospital. While the deceased was under treatment, he succumbed to the injuries. P.W.7 (doctor) also specifically stated that injury Nos. 1 and 3 were grievous in nature and injury Nos. 2 and 4 were simple in nature. He also admitted that if immediate treatment would have been given to the deceased, there was chance of survival. From the above, it is crystal clear that the appellant had no intention or motive to kill the deceased. It appears that on account of grave and sudden provocation due to filthy abuse by the father, the appellant lost his balance and assaulted the deceased causing his death. Thus, the present appellant on the heat of passion gave blows to the deceased. This aspect of the matter has been lost sight of by the learned trial court. P.W.9 has stated that after the occurrence the deceased got up and went to the field with a bleeding head. P.W.7 has specifically stated that if immediate treatment would have been given to the deceased, there was chance of survival. The deceased was shifted to the hospital after 8 to 10 hours of the occurrence. P.W.9 has stated that after the occurrence the deceased got up and went to the field with a bleeding head. P.W.7 has specifically stated that if immediate treatment would have been given to the deceased, there was chance of survival. The deceased was shifted to the hospital after 8 to 10 hours of the occurrence. From the above, this Court concludes that this case is not coming u/s 302, IPC and at best it can be a case under Part-I of Section 304, IPC. Accordingly, this Court converts it to a case u/s 304 Part-I, IPC and sentences the appellant to undergo R.I. for ten years. 7. It is stated by the learned counsel for the appellant that the appellant by now has already remained in custody for more than eleven years. If that be so, the appellant be set at liberty forthwith, unless his detention is required otherwise. The Jail Criminal Appeal is accordingly allowed in part. Final Result : Partly Allowed