Judgment This appeal has been filed through jail. The Sole appellant has been convicted under section 302 I.P.C. for causing murder of his own brother Ilias Ba and has been sentenced to undergo rigorous imprisonment for life. 2 The unfortunate father is the informant in this case, who is P. W.4. He has stated in the Court that on the date of occurrence i.e. on 14.5.82 at about 7-8 P.M., he was at his house. His son Antoni Ba was also in the house. His son, IIlias (deceased was living separately). He came to the informant and told that he would take away the tiles from the roof of the house which fall in his share. This led to altercation in between was and Antoni. Thereafter it is said that Antoni assaulted the deceased with a Tangi, as a result of which he died then and there. Next morning Sarpanch of the area P.W. 8, Chowkidar, P.M. 7 and others came. The further case of the prosecution is that even in the night and in the next morning, this appellant confessed his guilt before the Sarpanch and other witnesses. On information given by Chowkidar, the S.I. came and recorded the statement of P.W.4, which is Ext. 3, on the basis of which a case was registered. He took up investigation and submitted charge-sheet against this appellant. It is the further case of the prosecution that when the police officers came to the place of occurrence, this appellant took out a Tangi from his house and handed over to the Police. 3. Subsequently this appellant was put on trial and 11 witnesses were examined on behalf of the prosecution to prove the charge. The Investigating Officer could not be examined. Out of the 11 witnesses, P.W.4 is the informant himself, who is no body else than the father of the deceased, P.W.1. is the doctor, who conducted Postmortem examination. P.W.2 is the Magistrate, who recorded the statements of P.Ws.4 and 5, under section 167 Cr. P.C. P.W.3 is the formal witness. P.W.5 has come to say that the Tangi was produced by this appellant before the Investigating Officer. P.Ws. 6, 8 and 9 have said about the extra Judicial Canfession made by this accused before them. P.W. 7 is the Chowkidar. P.C. P.W.3 is the formal witness. P.W.5 has come to say that the Tangi was produced by this appellant before the Investigating Officer. P.Ws. 6, 8 and 9 have said about the extra Judicial Canfession made by this accused before them. P.W. 7 is the Chowkidar. P.W.10 is the wife of the deceased who was declared hostile and cross-examined by the prosecutor with the permission of the Court. P.W.11 has been tendered. 4. The learned counsel appearing on behalf of the appellant has challenged the order of the conviction on the ground that on the evidence available on the record, the order of conviction should not be upheld. He has also contended that the offence under Section 302 I.P.C., in the present situation is not made out. We have been taken through the entire evidence. The informant in his chief has stated that Antoni assaulted Ilias with a Tangi and when the wanted to separate, he was pushed down, but in the last of his cross-examination, he said that he did not see Antoni assaulting Ilias with a Tangi. On this statement of P. W. 4, learned counsel for the appellant has stated that P.W.4, - the solitary eye witness is also not an eye witness of the occurrence. True it is, that in the last of his cross-examination; he has stated so, but one has to remember that P.W.4 is the most unfortunate man. He lost one of his sons, when he was killed and another son faring trial of murder. There fore, he must have been put in dilemma Therefore, it cannot be said that he is not an eye witness of the Occurrence. Had it been so, he would not have stated in the Chief as eye witness In the earliest, which is the F.I.R., he has also figured himself as an eye witness of the occurrence 0 n e thing has to be remember in this connection that according to his own statement, the deceased was living separately form him and the appellant was living with him on the date of the occurrence, but still he has stated in the fardbeyan and in the Chief that it was this appellant who gave Tangi blow to his son Ilias. No reason has been shown to us as to why' the poor father will give false evidence against his own surviving son, who was living with him therefore he is a most natural witness. In these circumstances, we find and hold that P.W.4 had seen the occurrence. 5. Another part of evidence against this appellant is his extra-judicial confession made before the Sarpanch, his uncle, P.W. 6 dies, he will inherit the landed properties of johan. He admitted in the cross-examination that in the night he did not infrom any one about the occurrence. Then again he says that "Mujhe Bhi Nahin Bataya The ki Aisa Hua. Punah kaha ki une Shukravar ki Rat Kuchh Nahin Bataya Agle Din Shaniwar ko Apne Ghar Me johan Ne Bataya ki Aisa Aisa Hua." Therefore, the evidence of P.W.6 is not consistent. According him, though he was told about the occurrence by the appellant in the night itself but he did not in from anyone about this. This conduct is not consistent with natural conduct of human specially when he was one of the agnates of the informant. Therefore, no reliance can be placed on his evidence, as regards the extra Judicial Confession is concerned and rightly the trial court has disbelieved him. P.W.8 is the Sorpanch. He belongs to another village. On 15.5.82, he came to the place of occurrence on information and there on his query, the appellant told him that he had killed his brother with a Tangi and thereafter he and Santosh went to Thana and gave information to the Police, on which the police came and recorded the, statement of the informant. It has not been brought on the record as to what information he gave to the Police when he had gone to the Police station after getting information about the occurrence. Unfortunately, the Investigating Officer has not been examined in this case P.W.6 is Lodha. He has said that in the night of the occurrence, he was at his house. There was quarrel in between Anteni and Ilias. At about 8 P.M. Antoni came to call him and said that he had assaulted his elder brother Ilias with a Tangi. Thereafter he went to the place of occurrence and saw the dead body. He has said that in the night of the occurrence, he was at his house. There was quarrel in between Anteni and Ilias. At about 8 P.M. Antoni came to call him and said that he had assaulted his elder brother Ilias with a Tangi. Thereafter he went to the place of occurrence and saw the dead body. He also enquired as to why he had assaulted on which he had said that he had quarreled with the deceased and the deceased had slapped him and therefore, he assaulted him with a Tangi. There is nothing in his cross-examination to disbelieve this witness P.W.10 has stated that he did not know about the occurrence and then she was cross-examined by the public prosecutor. Therefore on the point of extra-judicial confession, we find reliable evidence of P.W.9 Of course that Tangi has not been produced in court nor the Sub-Inspector of Police has come to say that under which situation the Tangi was produced before him. Even if we exclude this aspect of evidence, there is sufficient evidence, as discussed above that it was this appellant who assaulted the deceased. Therefore, we find and hold that it was this appellant who gave Tangi blow to the deceased which resulted in his death. This finding of ours is fully corroborated by the Medical evidence of P.W.1, the doctor, who conducted the postmortem examination on the dead body of the deceased. 6. Now the question arises, as to under these circumstances, what offence this appellant has committed. The F.I.R. contains the earliest statement of P.W.4, the father of the deceased. According to the F.I.R., Ilias, the deceased was living separately after constructing his own house. In the night of occurrence, the deceased came to the house of this appellant and the informant and shouted and got his another son, the appellant woke up. Thereafter the deceased told him that he would take away the tiles and other things of his share next morning. Antoni woke up and there was hot exchange of words in between the deceased and the appellant. The deceased Ilias assaulted Antoni with slaps and then Antoni assaulted the deceased with Tangi due to which he fell down and died. Thereafter the deceased told him that he would take away the tiles and other things of his share next morning. Antoni woke up and there was hot exchange of words in between the deceased and the appellant. The deceased Ilias assaulted Antoni with slaps and then Antoni assaulted the deceased with Tangi due to which he fell down and died. Even in his examination in Chief in Court he has stated that when the deceased came to his house, there was quarrel in between Antoni and Ilias and then Antoni assaulted Ilias with Tangi. Thus from the prosecution evidence it is clear that in the night when the informant and the appellant were sleeping in their house, the deceased went to their house and woke him up with shouting and there was exchange of hot word in between them. The deceased slapped the appellant and thereafter the appellant also assaulted the deceased with Tangi. Therefore, it is clear that it was the deceased who took initiative for quarrel which ended in his death. Had he not gone to his house and took up quarrel, the occurrence would not have taken place. Therefore it was the deceased who initiated the matter. In these circumstances, it cannot be said that the appellant is guilty of the charge under section 302 I.P.C., because as stated above, it was the deceased who took initiative for the quarrel. 7. From the evidence discussed above, it is clear that the deceased assaulted the appellant with slaps. There is nothing to show that there was any injury on the appellant or the appellant had reasonable apprehension either of his life or of getting grievous injury. Assault by slaps ordinarily does not cause death or grievous injury. Therefore the appellant had no justification to retaliate by assaulting the deceased with Thangi, especially when he gave several blows. In the circumstances, we find and hold that he exceeded the limit and even the right of private defence. Accordingly we find him guilty under section 326 I.P.C. 8. This leads us for consideration on the point of sentence. In the circumstances, in which the occurrence took place, we find that life imprisonment will be too excessive especially when the deceased himself initiated the trouble. 9. Accordingly we find him guilty under section 326 I.P.C. 8. This leads us for consideration on the point of sentence. In the circumstances, in which the occurrence took place, we find that life imprisonment will be too excessive especially when the deceased himself initiated the trouble. 9. Taking into consideration the fact that the occurrence took place on 14.5.82 and since then the appellant is in jail, we are of the opinion, that a sentence of 7 years rigorous imprisonment will meet the ends of justice. Accordingly, the appellant is sentenced for seven years. The period already under gone by him in jail will be considered while computing the sentence of seven years imprisonment. It has also to be noted that the moment the period of seven years ends, the appellant will be set at liberty, if not wanted in any other case. 10. In the result, this appeal is dismissed with the modification in the order of conviction and sentence, as stated above. Appeal dismissed.