H. C. MITAL, J. ( 1 ) KAPOOR Lal has preferred this appeal against his conviction and sentence u/s. 302, I. P. C. to life imprisonment passed by Sri R. N. Sinha, Additional Sessions Judge, Fatehpur, on 11-1-79. ( 2 ) TO appreciate the facts of the case, the following pedigree would be helpful :birbal baijnath mahipat Smt. Chameli Kapoor Lal (Appellant)deshraj (deceased) Smt. Suraj Kali (P. W. 5) ( 3 ) THUS the appellant Kapoor Lal is real nephew (brothers son) of deceased Deshraj. ( 4 ) THE prosecution case, in brief, is that on 3-8-75 Km. Sumitra, daughter of Deshraj, and Shatraghan, brothers son of Smt. Chameli, wife of Mahipat while playing had quarrelled. Thereupon Smt. Suraj Kali had intervened and in the meantime Smt. Chameli, mother of Kapoor Lal, had also come and exchange of abuses took place in between them. Kapoor Lal also arrived there and started abusing Smt. Suraj Kali. In the meantime at about sun set the deceased also arrived from his field and on seeing Kapoor Lal abusing his wife reprimanded him for not abusing Smt. Suraj Kali who was like his own mother. Thereupon Kapoor Lal lost his temper and threatening that he would teach him a lesson brought a "selha" from his house and wielded the same on the deceased who had fallen down near Ashok tree. The selha (a spear like weapon) hit the stomach and immediately thereafter on hearing the cries of the deceased the witnesses arrived and the appel lent made good his escape. He has taken to the Hospital but he was brought back after about 11/2 hours as he had died on the way. The first information report of the occurrence on behalf of Smt. Suraj Kali was submitted at the Police Station by the village Chaukidar on the basis of which a case u/s. 302, IPC was registered and investigation started. Postmortem of the deceased took place on 5-8-75 at 2 p. m. at Fatehpur. Dr. Avinash Chandra Srivastava who had done the autopsy had noted as follows :"average built body. Rigor mortis was absent in the upper extremities but was partially present in the lower limbs. Bluish discolouration was present over the body and there were blisters on the abdomen. Postmortem of the deceased took place on 5-8-75 at 2 p. m. at Fatehpur. Dr. Avinash Chandra Srivastava who had done the autopsy had noted as follows :"average built body. Rigor mortis was absent in the upper extremities but was partially present in the lower limbs. Bluish discolouration was present over the body and there were blisters on the abdomen. "ante-mortem injury :"punctured wound 3/4"x 1/2" on left mid Axillary line 12" below axilla, directing from front literally to backward medially and horizontal, piercing through skin abdomen cavity large intestines, spleen. 2lb of blood with water fluid with faecal matters present in abdominal cavity, clean cut margins. " ( 5 ) ON internal examination he also noted that the large intestine and spleen were punctured, Stomach and intestines were empty. In the opinion of the Doctor the death was caused due to shock and haemorrhage. After completion of the investigation the charge sheet was submitted and the case was committed. ( 6 ) AT the trial, the accused pleaded not guilty. The appellant in his statement u/s. 313, Cr. P. C. stated that Smt. Suraj Kali had left her husband and started living with Deshraj without marrying him and that she used to enjoy jokes with Pati Rakhan whereupon he had reprimanded him and, therefore, she has falsely implicated him. ( 7 ) TO prove its case the prosecution examined in all seven witnesses of whom P. W. 1 Dr. Avinash Chandra Srivastava had done the autopsy on the dead body of the deceased. P. W. 2 Pati Rakhan is the scribe of the first information report Ext. Ka-2. P. W. 3 Shiv Nandan and P. W. 5 Smt. Suraj Kali are eye witnesses of the occurrence and they have fully corroborated the prosecution story stated above. P. W. 4 Head Constable Iqbal Bahadur Singh had received the written report and registered the case in the General Diary P. W. 7 Veer Bali, brother of the deceased had taken him in the injured condition to Hospital when he died on the way. Lastly, P. W. 6 Sub Inspector Shiv Kumar is the Investigating Officer and had deposed about the steps taken by him during the course of investigation. ( 8 ) IN defence the accused did not produce any defence. Lastly, P. W. 6 Sub Inspector Shiv Kumar is the Investigating Officer and had deposed about the steps taken by him during the course of investigation. ( 8 ) IN defence the accused did not produce any defence. ( 9 ) THE learned Sessions Judge mainly relied upon the testimony of P. W. 5 Smt. Suraj Kali and the testimony of Shiv Nandan P. W. 3 as his presence at that time was not free from suspicion. He believed the testimony of Smt. Suraj Kali and hence convicted and sentenced the appellant as above. ( 10 ) ON being aggrieved, this appeal has been preferred and the learned counsel for the appellant challenged the testimony of Smt. Suraj Kali mainly on the ground that she was a highly interested witness, being wife of thedeceased. ( 11 ) WE have closely scrutinized the testimony of Smt. Suraj Kali. She has given a very natural statement of the entire occurrence and there appears to be a ring of truth therein. That apart, the appellant is son of the brother of the deceased and being a very close relation, in the absence of any motive to falsely implicate him, she would not have normally falsely implicated him and left the real assailant. The allegation of the appellant in his statement u/s. 313, Cr. P. C. that he had reprimanded her when he found her indulging in jokes with Pati Rakhan is prima facie absurd and no such suggestion was made to Pati Rakhan P. W. 2, in his cross-examination that he had been reprimanded by the appellant when he was indulging in jokes with Smt. Suraj Kali. The learned counsel for the appellant also could not point out any such circumstance in the testimony of Smt. Suraj Kali which might militate against the veracity of her statement and, therefore, we wholly agree with the conclusion of the learned trial Judge that this appellant alone had been the assailant and responsible for the death of the deceased. ( 12 ) ON behalf of the appellant, relying upon a recent decision of the Honble Supreme Court in the case of "khanjan Pal v. State of U. P. (1990) 3 JTSC 359" it was contended that the offence fell u/s. 304, Part II and not u/s. 302, IPC. ( 12 ) ON behalf of the appellant, relying upon a recent decision of the Honble Supreme Court in the case of "khanjan Pal v. State of U. P. (1990) 3 JTSC 359" it was contended that the offence fell u/s. 304, Part II and not u/s. 302, IPC. We, however, agree with this contention of the learned counsel for the appellant that on the basis of the facts proved the offence is not murder punishable u/s. 302, IPC and the act of the appellant as proved may fall u/s. 304, Part II of the IPC. According to the statement of Smt. Suraj Kali also an altercation between her and Smt. Chameli, mother of the appellant, had taken place and when there was exchange of abuses this appellant had also taken side of his mother and abused her and that the deceased also happened to arrive there and reprimanded the appellant for abusing Smt. Suraj Kali whereupon the appellant took out the selha from his house and wielded the same on the deceased. The evidence thus clearly points out that the whole incident was a sudden development and that the appellant acted on the spur of moment and without pre-meditation. Admittedly, there had been no ill will or enmity between the two. Mere reprimanding the deceased had provoked the appenant which culminated into giving a single blow with selha to the deceased. It was in the sudden quarrel and heat of passions that the appellant, a young man of 18 years as he then was, inflicted the injury on the deceased, his own real uncle, without any intention to cause death but having knowledge that such act was likely to cause death of the deceased. In such circumstances, the act of the appellant falls u/s. 304, Part II, IPC. The appellant has already been in prison for some time and he has been on bail for the last about 13 years. He being a young man, in our opinion, he need not be now committed to prison for any other period at this stage. To meet the ends of justice, we direct the appellant to pay a fine of Rs. 50,000. 00 (fifty thousand) in addition to the term of imprisonment he has already suffered. The learned counsel for the appellant has agreed that this Court may impose fine instead of awarding him any further imprisonment. To meet the ends of justice, we direct the appellant to pay a fine of Rs. 50,000. 00 (fifty thousand) in addition to the term of imprisonment he has already suffered. The learned counsel for the appellant has agreed that this Court may impose fine instead of awarding him any further imprisonment. ( 13 ) ACCORDINGLY, we allow this appeal in part and modify the conviction and sentence awarded by the learned court below. The fine of Rs. 50,000. 00 be paid within three months. In default of payment of fine, the appellant shall undergo four years rigorous imprisonment. In case the fine is realised, Smt. Suraj Kali, widow of the deceased, be paid amount of Rs. 50,000/ (Fifty thousand) the fine so realised. Appeal partly allowed. .