JUDGMENT V. K. Mehrotra, J. 1. PUKHAN son of Gayasi a resident of village Banka Pahari, police station Gursarai, district Jhansi has been convicted under section 302 IPC and sentenced to under go imprisonment for life for committing the murder of his brother Durga by assaulting him with a lathi. He has also been convicted under section 323 IPC and sentenced to undergo rigorous imprisonment for six monies for causing injury to another brother of his, Ghanshyam, with a lathi. The conviction recorded by the Sessions Judge, Jhansi by judgment dated September 8, 1975 has been assailed by PUKHAN in this appeal. 2. THE prosecution case is simple. It is said that at about 8.00 P. M. on October 3, 1974 there was an altercation between the wives of Ghanshyam and Pukhan, each of them hurling abuses on the other. Ghanshyam's wife restrained herself when Ghanshyam asked them not to quarrel. Pukhan's wife persisted and when Ghanshyam asked Pukhan, who was also present nearby, to restrain his wife from quarrelling, Pukhan is said to have given a lathi blow to Ghanshyam in the head on account where of he fell down. Durga, the deceased, then intervened and it is said that a lathi blow was given to him also by Pukhan. Durga there upon picked up a stick lying nearby and struck a few blows with it upon Pukhan who there after is said to have given a few lathi blows to Durga. Some of the blows landed on the head of Durga who was seriously injured. Pukhan is said to have run away from there. A report about the incident was lodged the next morning at 9.30 a.m. at police station Gursarai which is at a distance of six miles from the village where the incident took place. PW 9 Sub-Inspector Jagdamba Prasad was present when the report was lodged. He took up investigation and eventually submitted a charge- sheet against the appellant on October 24, 1974. 3. THE injuries of Ghanshyam (PW 1) were examined by Dr. K. L. Agarwal (PW 7) on October 5, 1974 at 7.00 p. m. He found a contused wound 1-1/2" x 2/10" x 2/10" in the right parietal area of scalp. The wound was oblique and was located 2-1/2" above the right ear. The injury was simple and appeared to have been caused by blunt weapon. K. L. Agarwal (PW 7) on October 5, 1974 at 7.00 p. m. He found a contused wound 1-1/2" x 2/10" x 2/10" in the right parietal area of scalp. The wound was oblique and was located 2-1/2" above the right ear. The injury was simple and appeared to have been caused by blunt weapon. Appellant Pukhan was also examined by Dr, Agrawal the same day at 1.15 p. m. and the following injuries were found on his person: (Injuries quoted-Ed.) All these injuries were simple. In the opinion of the doctor, the injuries could have been sustained by both the injured person at about 8.00 or 9.00 p. m. on October 3, 1974 and could have been caused by a blunt weapon like a lathi except injury no. 4 of Pukhan which could be caused by friction. Dr. S. B. L. Saxena (PW 3) made the post-mortem examination of the dead body of Durga who had died on his way to the police station. This examination revealed the presence of the following ante mortem injuries :-(Injuries quoted-Ed.) 4. APART from the formal evidence, the prosecution produced PW 1 Ghan- shyam, brother of the deceased, PW 2 Sagun Dulaiya, widow of the deceased, PW 4 Bundiya, the younger sister of PW 2 and a concubine of the deceased and PW 5 Kalka son of the deceased in support of its case. PW 1 did not support the prosecution story in its entirety and was cross-examined by the prosecution itself. The remaining witnesses, namely, PWs 2, 4 and 5 supported it in its entirety. The appellant denied that he had assaulted the deceased. According to him, Ghanshyam was inimically disposed towards him and so was PW 4 Bundiya. He examined Phulla, one of his brothers as DW 2 to say that it was deceased Durga who had actually assaulted Pukhan with a lathi as a result whereof the appellant fell down. When the deceased there after ran out due to nervousness and fear, he fell down headlong and sustained injuries in his head when it struck stone pieces lying in the adjoining pathway. Ghanshyam, according to this witness, had sustained injury when he was struck by a piece of stone thrown by Pukhan's wife. The trial Judge accepted the prosecution case and disbelieved the one set up by the appellant. He, wherefore, convicted the appellant as aforesaid. Ghanshyam, according to this witness, had sustained injury when he was struck by a piece of stone thrown by Pukhan's wife. The trial Judge accepted the prosecution case and disbelieved the one set up by the appellant. He, wherefore, convicted the appellant as aforesaid. The houses of the various brothers including the appellant and the deceased as well as PW 1 Ghanshyam, are in close proximity. The incident took place on the pathway on the two sides where of these houses adjoining each other are located. There are house of some more persons near by but from the statement of PW 2 Sagun Daulaiya, in her cross-examination, it is clear that the inmates of these houses had not arrived at the time of the incident. Having regard to the time of the occurrence and the circumstances in which it is said to have taken place, it is obvious that the witnesses who have been produced by the prosecution were the only natural witnesses of the incident. Of them PW 1 Ghanshyam has not supported the prosecution version presumably because he did not want his own brother to be penalised. However, from the testimony of PW 2 Sugan Duliya, the wedded wife of the deceased; PW 4 Bundiya, her younger sister and the concubine of the deceased as well as of PW 5 Kalka, it is clear that the incident took place in the manner suggested by the prosecution. The trial Judge has accepted their testimony. We have been taken through their evidence by the learned counsel for the appellant but we find nothing therein to persuade us to take a view different from the one taken by the trial Judge in regard to their credibility The evidence of these witnesses together with the medical evidence is sufficient to take the view that the deceased had succumbed to the injuries caused by the appellant. We are not inclined to accept the submission of the learned counsel for the appellant that the injuries found on the person of the deceased were not caused by the appellant but had resulted from a headlong fall. 5. THE next question is about the offence which the appellant can be held to have committed. We are not inclined to accept the submission of the learned counsel for the appellant that the injuries found on the person of the deceased were not caused by the appellant but had resulted from a headlong fall. 5. THE next question is about the offence which the appellant can be held to have committed. The submission of the learned counsel for the appellant in this regard has been that having regard to the prosecution case itself, the offence committed by the appellant is not punishable under section 302 IPC but would be one punishable under section 304 IPC. We find substance in this submission. 6. FROM the recital in the first information report, as also from the testimony of the eye witnesses, it is clear that the incident was the outcome of sudden quarrel amongst the family members in which tempers ran high and the brothers resorted to assault on each other by lathis. It is stated by prosecution witnesses Sugan Dulaiya, Bundiya and Kalka that when PW 1 Ghanshyam asked the appellant to restrain his wife from persisting in hurling abuses, the appellant gave him a lathi blow upon which deceased Durga intervened when the appellant gave him also a blow with the lathi. Durga then assaulted the appellant with a stick and in turn he was assaulted again by the appellant. Each of them struck 2 or 3 blows. It is clear that these blows were not premeditated and had been struck by the appellant in a sudden fight in the heat of passion on a sudden quarrel amongst the family members and without taking any undue advantage or without acting in any cruel or unusual manner. The appellant himself had sustained injuries on the head. The deceased seems to have sustained 2 or 3 injuries on the head while he and the appellant were both assaulting each cither. Having regard to the circumstances in which the deceased sustained the injuries which eventually led to his death, as also having regard to the nature and number of the injuries, it is clear that the case is covered by Exception 4 of section 300 IPC and the offence committed by the appellant is thus punishable under Part I of section 304 IPC. 7. 7. ACCEPTING the appeal in part, therefore, we set aside the conviction of the appellant under section 302 IPC and the sentence of imprisonment for life awarded by the trial Judge and convict the appellant instead under Part I of Section 304 IPC and direct that he shall undergo rigorous imprisonment for a period of five years on that count. His conviction under section 323 IPC and sentence of six months rigorous imprisonment awarded by the trial Judge is upheld. Both the sentences shall, however, run concurrently. Appeal partly allowed.