JUDGMENT : J.K. Mohanty, J. - The Appellant has been convicted u/s 304, Part-II, Indian Penal Code and has been sentenced to undergo R.I. for seven years by the Sessions Judge. Cuttack. 2. The case of the prosecution is that Jogendra Mohanty, the deceased, is the paternal uncle of the informant (P.W. 1) and they were living together. Their homestead and the homestead of accused-Appellant Sadananda ' Sashi Pradhan are adjacent to each other. Accused Jagabandhu (since acquitted) is the sister's husband of accused Sashi. It is alleged that accused Sashi had encroached upon a portion of the land by shifting a fence dividing the land of Jogendra and his land. On 28-6-1976 in the morning the informant had planted some Saru on his land and had prepared a drain by the side of the fence for draining out the water. In the afternoon at about 3.00 P.M. the accused persons and the informant had a quarrel regarding the shifting of the fence and some bhadraloks were called to jntervene. But both the accused persons assaulted the informant by lathi. At that time the deceased rushed in to intervene. It is alleged that accused Jagabandhu caught hold of the deceased and accused-Appellant Sashi dealt some pushes by a lathi causing injury on the head of the deceased. The deceased was then taken to Dharmasala Public Health Centre where he was treated as a out-door patient and thereafter was brought home. But on returning he came unconscious and in the next morning was again taken to the hospital where he expired. 3. The plea of accused-Appellant Sashi, as revealed from his statement recorded u/s 313, Code of Criminal Procedure, is that he saw the informant cutting a portion of the fence and called bhadraloks to intervene. But the informant abused him and chased him to assault by a kanka (spade) but was prevented by the bhadraloks. Out of fear he caught hold of a thengeni (short lathi). The informant went to his side by jumping over the fence and bath of them struggled over the short lathi. Later on he learnt that the deceased had sustained injury on his head. But at the time of hearing it was suggested to the prosecution witnesses that during the struggle between the Appellant and the informant over the short lathi the deceased came in between them and the lathi struck on his head. 4. Later on he learnt that the deceased had sustained injury on his head. But at the time of hearing it was suggested to the prosecution witnesses that during the struggle between the Appellant and the informant over the short lathi the deceased came in between them and the lathi struck on his head. 4. To prove the case the prosecution examined fourteen witnesses and one witness was examined on behalf of the defence. P.W. 1 is the informant and the nephew of the deceased, P.W. 3 is the mother and P.W. 4 is the wife of the deceased, P.Ws. 5 and 11 are the first cousins of the Appellant and P.Ws. 9 and 10 are the co-villagers of the deceased. All these persons are eye witnesses to the occurrence. P.W. 6 is the Doctor who treated the deceased as an out-door patient on 28.6.1976 and P.W. 12 is the Doctor who conducted post-mortem examination over the (ead body. P.W. 2 is a witness to the seizure of M.Os. I and II as per seizure lists (Exts. 2 and 3). P.W. 7 is the Pharmacist of the P.H.C. who ]s a witness to the seizure of the bed-head ticket concerning the deceased. P.W. 8 is the Constable who identified the dead body of the deceased. P.Ws. 13 and 14 are the police officers who took part in the investigation of the case. The learned Sessions Judge after considering the evidence on record acquitted accused Jagabandhu but found the Appellant guilty u/s 304, Part II. Indian Penal Code and sentenced him as aforesaid. 5. Mr. Panda, learned Counsel appearing for the appellant, submitted that there is no reliable evidence against the Appellant to hold him guilty u/s 304, Part II, Indian Penal Code. P.Ws. 1, 3 and 4 are relations of the deceased and P.Ws. 5 and 10 have been declared hostile and have been cross-examined by the prosecution. The evidence of P.W. 9, the so-called independent witness, supports the plea of the defence that during the struggle the lathi accidentally struck the deceased. P.W. 11 is not a reliable witness. P.Ws. 1, 3 and 4 are relations of the deceased and P.Ws. 5 and 10 have been declared hostile and have been cross-examined by the prosecution. The evidence of P.W. 9, the so-called independent witness, supports the plea of the defence that during the struggle the lathi accidentally struck the deceased. P.W. 11 is not a reliable witness. The learned Counsel argued that when the accused has put forward a reasonable defence which is likely to be true and in addition supported by some prosecution witnesses, the burden on the other side is all the more heavy and if any' prosecution witness gives evidence against the prosecution case and in support of the defence, the case of the defence is to be believed. In support of his contention he cited decisions reported in Hate Singh Bhagat Singh Vs. State of Madhya Bharat Kartar Singh Vs. Bajrangi Lall and Others, and Raghunath Pradhan and Ors. v. State 24 (1958) C.L.T. 215. 6. In this case it is revealed from the evidence of the prosecution witnesses and that of D.W. 1 that there was a quarrel between the Appellant and the informant regarding the shifting of the fence. Both parties also admit that some bhadraloks were called to intervene. During the quarrel there was a struggle, as admitted by D.W. I, over the short lathi held by accused-Appellant Sashi and the lathi struck the head of the deceased causing bedding injury. But the prosecution witnesses have stated that during the quarrel accused Jagabandhu caught hold of the deceased and accused-Appellant Sashi gave a push by the lathi as a result of which the deceased sustained injury on his head and ultimately met his death. So it is the admitted case of both the parties that there was a quarrel between the Appellant and the informant and during the quarrel the deceased was injured by the Appellant. Of course P.Ws. 1, 3 and 4 are relations of the deceased and P.Ws. 5 and 10 have resiled from their earlier statement and have been declared hostile by the prosecution. But P.W. 9 appears to be an independent witness and the learned Court below has placed reliance on his evidence. P.W. 9 has stated that he was called by the accused-Appellant saying that he had a dispute with P.W. 1 over the fence. 5 and 10 have resiled from their earlier statement and have been declared hostile by the prosecution. But P.W. 9 appears to be an independent witness and the learned Court below has placed reliance on his evidence. P.W. 9 has stated that he was called by the accused-Appellant saying that he had a dispute with P.W. 1 over the fence. He (P.W. g) advised the parties not to quarrel and to call one Amin to measure the land and settle the dispute. At that time P.W. 1 was holding a spade and accused Sashi was holding a short lathi. They quarreled with each other over the fence. During the quarrel they raised their respective weapons to assault. Manguli Pddhan snatched away the spade from P.W. 1. P.W. 1 also caught hold of the lathi raised by accused Sashi and they struggled with each other over the same. At that tlme the deceased advanced in between accused Sashi and P.W. I. perhaps to intervene or for some other purpose. During that period accused Sashi gave a push by the lathi to the eye-brow of the deceased. There was bleeding injury. Then accused Sashi went away home. P.W. 11 has supported the evidence of P.W. 9 that accused Sashi gave a push with the lathi on the eye-brow of the deceased. P.W. 12, the doctor who conducted post-mortem examination, found the following external injuries: 1. Lacerate wound 3 cm x 2 cm x scalp deed over left side of the skull over left eye brow. 2. Haematoma 3 cm x 3 cm and 3 cm x 2 cm over right superior illiac spine. On dissection the following internal injuries were noticed, A stelate shaped fracture 2cm cover left ear radiating into back 3 to 4 cm. There was subdural haematoma underneath with laceration of brain substance. According to P.W. 12 all the injuries were antemortem in nature a and in ordinary course sufficient to cause death. D.W. 1 has stated that during the quarrel P.W. 1 abused accused Sashi as 'Sala' saying that his father had done so and died and he himself was doing the same. Then accused Sashi caught hold of the left hand of P.W. 1 and protested. Accused Sashi pushed P.W. 1 who raised the kanka and accused caught hold of the same. Then both parties struggled over the kanka. Then accused Sashi caught hold of the left hand of P.W. 1 and protested. Accused Sashi pushed P.W. 1 who raised the kanka and accused caught hold of the same. Then both parties struggled over the kanka. He (D.W. 1) asked Manguli to snatch away the lanka and when Manguli snatched away the same accused Sashi caught hold of a small lathi lying there. Then both parties struggled over that small lathi. The mother of P.W. 1 shouted that his son was being killed. Then the deceased who was within 6 cubits away rushed inside and during the struggle over that small lathi, it struck over the left eye brow of the deceased. So from the evidence of D.W. 1 it is evident that the deceased received the injury at the time and place as stated by the prosecution witnesses, though under somewhat different circumstances. 7. The learned trial Court has considered all the aspects argued by the learned Counsel for the Appellant and has held that the accused-Appellant has inflicted the injury on the deceased and as a result the deceased met his death. After considering the entire evidence on record I see no reason to differ from the finding of the learned trial Court that the Appellant is guilty u/s 304, Part II, Indian Penal Code. As the evidence reveals, the death of the deceased was committed without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. In the above circumstances I feel that the sentence awarded by the learned trial Court is quite severe and in my opinion a sentence of two years R.I. will meet the ends of justice. 8. In the result, therefore, the appeal is dismissed with the aforesaid modification in sentence. Final Result : Dismissed