Judgment N. P. Singh, J. 1. - This appeal is directed against the judgment and order dated 22-11-1987 passed by 1st Additional Sessions Judge Gopalgani in S. T. No.23/5 of 1985, whereby he convicted the appellant under Section 302 of the Indian Penal Code, simpliciter and sentenced him to imprisonment for life. 2. On, 11th August, 1982 at 22.30 hours, the informant Akbar Ali (P. W 8) gave his. statement before A. S. I, of Mirganj Police station namely md. Habib (P. W.11) to the effect that on that day in the evening at about 6 p. m. , he was returning home from Mirganj Bazar along with his nephew Fune (since deceased), co-villagers, Bhulan Mian (P. W 1), Ramjee ram (P. W.2), Sheo Prasad Ram (P. W.3), Ramayan Nonia (P. W.4) and farid Ahmad Khan (P. W.5), when they reached on the road near Pakar-tree, south to the house of Raghunandan Lohar, they saw appellant Lotan turha coming from the west concealing a Fasuli behind his back and he suddenly pierced Fasuli in the abdomen of Fune and pulled out the same and escaped towards the south in a maize field, brandishing Fasuli at the informant and his companions. Fune fell down after sustaining the injury. Hi wever, he proceeded further pressing his abdomen and on reaching the sahan of Noor Mohammad Mian, he fell down where Zaitun Nisa (P. W.6)wife of Mohammad Jalaluddin bandaged his wound. Thereafter, several persons arrived there and they carried the injurred to the dispensary of dr. Gauri Shankar Prasad who referred him to the Hathua Hospital. The injured was admitted to Hathua Hospital where he died within a few minutes. The motive for the occurrence, as alleged in fard beyan was that on the day of occurrence, there was an altercation between the appellant and his nephew Chaturi Turha (P. W.7) at 4 P. M. The deceased had intervened and separated them which had caused annoyance to the appellant. On the basis of yard beyan (Ext.2), a formal first information report (Ext.3) was drawn up and police took up the investigation of the case. 3. After the investigation and charge sheet, the cognizance of the offence was taken and the case was committed to the court of session. 4. On the basis of yard beyan (Ext.2), a formal first information report (Ext.3) was drawn up and police took up the investigation of the case. 3. After the investigation and charge sheet, the cognizance of the offence was taken and the case was committed to the court of session. 4. The defence was that the deceased in intoxication had attempted to outrage the modesty of the wife of the appellant and on alarm, Chaturi turha (P. W.1), nephew of the appellant had seized the deceased and dealt a Chhura blow. The wife of the appellant examined herself as d W.1 in support of the defence. 5. The prosecution examined, in all, eleven witnesses at the trial. Out of whom, P. W.1 Bhulan Mian, P. W.2 Ramjee Ram, P. W.3 Sheo prasad Ram, P. W.4 Ramayan Nonia, P. W.5. Farid Ahmad Khan and p. W.8 Akbar AH the informant have deposed as eye-witnesses to the occurrence. P. W.6 Zaitun Nisa had bandaged the wound of the deceased p. W.7 Cbaturi Turha is a witness on the motive. P. W.9 Dr. Vinod kumar Bihari had held the autopsy on the dead body of the deceased and has proved post mortem examination report (Ext.6 ). P. W.10 Mustafa hussain is a witness on the inquest and P. W.11 Md. Habib had recorded the fard beyan of the informant at Hathua Hospital. The Investigating officer of this case has not been examined by the prosecution, as he was reported to be dead. 6. On consideration of the evidence, the learned trial court convicted the appellant and sentenced him in the manner mentioned aforesaid. 7. Mr. Akbauri Baidyanath Prasad, learned counsel for the appellant has contended that the informant was not an eye-witness of the occurrence but had come after the death of the deceased and has manipulated the fard beyan (Ext.2 ). According to the prosecution case, the informant was accompanied by the deceased, P. ws.1 and 2 and other p. Ws. at the relevant time, whereas P. W.1 in his deposition has not named the informant that he had also accompanied him and the deceased at the relevant time, rather he had come there on information after the occurrence. According to the prosecution case, the informant was accompanied by the deceased, P. ws.1 and 2 and other p. Ws. at the relevant time, whereas P. W.1 in his deposition has not named the informant that he had also accompanied him and the deceased at the relevant time, rather he had come there on information after the occurrence. His evidence is corroborated by P. W.2 Ramjee Ram by his statement that he had sent information at the house of the deceased by noor Mohammad, upon which the informant had come with Saukat and firoz. Besides this, P. W.6 Zaitun Nisa who had bandaged the wound of the deceased, has deposed that she had informed the family members of the deceased. The evidence of PWs. t, 2 and 6 indicate that the informant was not present otherwise there was no need to informant the house of the deceased. The testimony of P. W 8 as an eye-witness to the occurrence, therefore, cannot be accepted. 8. Apart from the infirmity in the evidence of the informant and p. Ws 1, 2, 6 and 8 as an eye-witness to the occurrence, the prosecution has not been able to establish ihe place of occurrence. No objective evidence of murder was found by the I. O. on the alleged place of occurrence. The I. O. is dead and hence, could not be examined by the prosecution. The case diary has however, been marked as Ext.5. It is evidence from the case diary vext-5) that no blood mark either near the pakar-tree or on the Sahan of Nocr Mohammad was found nor the jhola or any scattered rice or pulses, which the deceased was carrying at the relevant time, according to the prosecution case, was found there. 9. No doubt, there is discrepancy in the evidence of P. Ws.1, 2, 6 and the informant P. W.8 about the presence of the informant at the relevant time. The other eye-witnesses, namely, P. Ws.3, 4 and 5 have however, supported the prosecution case and the testimony of P. W.8 as an eye witness to the occurrence. Even P. Ws.1, 2 and 6 have supported the material aspect of the prosecution case that the appellant had pierced fasuli on the abdomen of the deceased. The other eye-witnesses, namely, P. Ws.3, 4 and 5 have however, supported the prosecution case and the testimony of P. W.8 as an eye witness to the occurrence. Even P. Ws.1, 2 and 6 have supported the material aspect of the prosecution case that the appellant had pierced fasuli on the abdomen of the deceased. The testimony of P. W.8 as an eye-witness to the occurrence, therefore, cannot be discarded on the ground of some minor discrepancy here and there in the evidence of P-Ws.1, 2 and 6 when the testimony of P. W.8 on all material points is corroborated by P. W.3 Shiv Prasad Ram, P. W.4 Ramayan Nonia and P. W.5 farid Ahmad Khan, the other eye-witnesses to the occurrence and even by P. Ws, 1 and 2. 10. Mr. Prasad further contended that the trial of the appellant has vitiated on the ground of non-compliance of mandatory provisions of law. as contained in Sec.278 of the Code of Criminal Procedure. The deposition of P. W.4 Ram Narayan Nonia and P W.5 Farid Ahmad Khan were not read over or explained to them after it had been recorded. He also placed in the case of Abdul (Bari) Mallick and another V/s. The King emperor, AIR 1926 Cal 157, wherein it was held that: "the compliance of Sec.360 (old) of the Code of Criminal Procedure is mandatory and the provisions contained therein must be strictly complied with and omission to comply with the mandatory provisions will vitiate the trial. " 11. The decision referred to above has no relevance in the present case. In this case, as many as eight witnesses were examined by the prosecution as eye-witnesses to the occurrence. Out of them, the depositions were not read over or explained only to the P. Ws.4 and 5. The evidence of P. Ws.4 and 5 even if ignored, the evidence of other remaining eyewitnesses fully support the prosecution case. Therefore, no prejudice was caused to the appellant. The omission to comply with the provisions of section 278 of the Code of Criminal Procedure will not vitiate the trial wh?n there is consistent and reliable evidence of other witnesses and the conviction is based on their testimony. No objection was raised by P. Ws, 4 and 5 any stage of trial that their statements were not recorded correctly. The omission to comply with the provisions of section 278 of the Code of Criminal Procedure will not vitiate the trial wh?n there is consistent and reliable evidence of other witnesses and the conviction is based on their testimony. No objection was raised by P. Ws, 4 and 5 any stage of trial that their statements were not recorded correctly. The conviction of the appellant is not based on the sole testimony of p. Ws.4 and 5, and, therefore, no prejudice has been caused to the appellant and the trial of the appellant has not vitiated due to the omission to comply with the provisions of Sec.278 of the Code of Criminal Procedure in this case. 12. Lastly, Sri Prasad contended that apart from the plea of defence, no offence under Sec.302 of the Indian Penal Code is made out on the evidence of the P. Ws. If the appellant had intention to cause death to the deceased, he could have repeated the blow, as there was no intervening circumstance to prevent him from repeating the blow. There is force in the submission of Sri Prasad in this regard. As regards defence of the appellant is concerned, nothing was suggested to Chaturi Turha (P. W.7)in his cross-examination and the same has been rightly disbelieved by the learned trial court. It is however, evident from the fard beyan (Ext.2)that the offence was committed by the appellant out of anguish and anger due to the intervention of the deceased in the duel between the appellant and his nephew Chaturi Turha (P. W.7) which had taken place just before the occurrence. It is thus, manifest that the offence was committed without any premeditation or malice. On the evidence of P. Ws. and the prosecution case, I am satisfied that no offence under Sec.302 of the indian Penal Code is made out. 13. The conviction and sentence of the appellant are accordingly set aside and the appeal is allowed and instead the appellant is convicted under Sec.304, Part-II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years. The appeal is disposed of. Appeal Allowed.