JUDGMENT Sinha, J. - Gokaran Singh and Nawab Singh were placed on their trial for offences under Ss. 379 and 304, read with S. 34, Penal Code. They were, each of them, sentenced by the learned Sessions Judge of Mainpuri to a fine of Rs. 100 under S. 379, Penal Code, or, in default, to rigorous imprisonment for one month. Gokaran Singh alone was sentenced to rigorous imprisonment for five years under the second part of S. 304, Penal Code. 2. On the night between February 26 and 27, 1946, at about midnight, these two persons, along with one more, who remained unidentified, were stealing gram from a field belonging to one Sheoraj, who, along with Kishori, had gone to see his field, Sheoraj raised an alarm, whereupon all the three ran away. They were, however, given a chase by both. After a short chase, Gokaran Singh hit Kishori with a spear, as a result of which he died shortly after. 3. Both the accused pleaded not guilty. Their case was that they have been falsely implicated on account of enmity. Nawab Singh's definite plea was one of alibi. Gokaran denied his complicity in the crime, or in the theft. According to him, all the Ahirs of Kishori's village were thieves. There was a previous litigation between him and the Ahirs and he owed his misfortune to their enmity. 4. The prosecution examined a large number of witnesses, among whom were Dungar, Shyam Lal, Sultan and Subedar. One of them was an eye-witness, whereas the rest were those who had received the information from Kishori himself about the part played by Gokaran in the crime. The learned Sessions Judge accepted the story for the prosecution in the main, and passed the sentences mentioned above. Gokaran alone has come to this Court in appeal. 5. The learned counsel for the appellant contends that, in circumstances such as these, it will not be safe to sustain the conviction on the testimony of those who are relations and between whom and the accused there is admittedly bad blood. Reliance has been placed in support of this contention on Mangal Chand Marwari Vs. 5. The learned counsel for the appellant contends that, in circumstances such as these, it will not be safe to sustain the conviction on the testimony of those who are relations and between whom and the accused there is admittedly bad blood. Reliance has been placed in support of this contention on Mangal Chand Marwari Vs. Makhan Goala, AIR 1930 Patna 292 I have no quarrel with the proposition laid down in this case, but, if the learned Judges meant to lay down as a dictum of universal application that in no case should a conviction be based upon the testimony of witnesses between whom and the accused the relations are strained, I, with great respect, enter my dissent from it. It is possible to conceive of a case where the only witnesses are people between whom and the accused no love is lost. It will be a ground for severe scrutiny of that evidence. It may even be a ground for receiving it with great caution but it will not be a valid ground to reject it on that ground alone. 6. The position in the case before me is slightly different. Not only is Sheoraj one of the eye-witnesses but there are a few others who received the information from Kishori himself at a time when he had received the fatal wound. That will not be a moment when he will think of vengeance; that will be the time when he will speak out truth and nothing but truth. 7. There is another point which has weighed with me. That Kishori died admits of no doubt. The defence does not fix the guilt upon any other person. It is true that the burden of proving the case rests on the prosecution, but this would have made some breach in the story for the prosecution and lent some support to the case for the defence. It was faintly suggested in the course of the argument that it was possible that the third man who remained unidentified might have been the author of the crime. This line of argument was not adopted before the learned Sessions Judge and, even before me, it was, as I have already said, but faintly argued that the unknown man was really responsible for the crime. 8. The question of sentence still remains to be considered. This line of argument was not adopted before the learned Sessions Judge and, even before me, it was, as I have already said, but faintly argued that the unknown man was really responsible for the crime. 8. The question of sentence still remains to be considered. The learned counsel for the appellant contends that there was no intention on the part of the accused to kill the deceased. The accused were caught red-handed in the act of stealing the gram; they had taken to their heels. They were obstructed by Sheoraj and Kishori and what they did was not intended to seriously injure, much less kill the deceased, but only to facilitate the theft. This contention is, to my mind, correct. The learned Sessions Judge has not addressed himself to this aspect of the matter, but, from the facts established by the prosecution itself, it is manifest that there was no intention to kill. I, therefore, think that the ends of justice shall be sufficiently met if the sentence under the second part of S. 304, Penal Code, is reduced from five years to two years. The sentence of fine under S. 379, Penal Code, shall stand. With this modification I dismiss this appeal. The appellant, who is on bail, must surrender to serve out the remaining sentence.