JUDGMENT - VISHNU SAHAI, J.:---The appellant aggrieved by the judgment and order dated 26.9.1983 passed by the Additional Sessions Judge, Pune in Sessions Case No. 166 of 1983, convicting and sentencing him to undergo imprisonment for life u/s 302 I.P.C. has come up in appeal before us. 2.Briefly stated the prosecution case runs as under:- The deceased Madhukar Narayan Kshirsagar was the brother of the appellant. According to the two eye witnesses of the incident namely, Ramakant Pandharinath Ubhe (P.W.1) and Bharat Digambar Nijampurkar (P.W. 2) at about 4-15 p.m. on 8-4-1983, the deceased and the appellant came on the street near public latrine, on Ganesh Ganpat Road, Kasba Peth, quarreling over real estate. The appellant told the deceased that he had maintained and protected the estate and asked whether he understood this. Thereupon the deceased asked him to take back the property from Jadhav. The appellant slapped the deceased. Ramakant Ubhe and Bharat Nijampurkar who were talking at a nearby electric pole intervened. The appellant told them it was their family matter and they should not interfere. He raised his hands to assault Ramakant Ubhe. He also told them that their relations would become strained. On that Ramakant Ubhe and Bharat Nijampurkar went back to the electric pole where they were talking. The appellant and the deceased went quarreling towards public latrine. The appellant is alleged to have caught hold of the pant of the deceased Madhukar and pushed him on the ground. There were two stones lying on the ground and the deceased Madhukar fell on them and expired in a short time. 2A.It is said that after the incident Madhukar was rushed to Sassoon Hospital where he was admitted in Ward No. 7. At the said hospital the appellant was present. P.I. Ashok Krishnaji Chandgude (P.W. 5), when he reached the hospital asked the appellant as to how Madhukar had received the injuries. On that the appellant told him that Madhukar had abused and beaten him and he had also beaten and injured Madhukar. From the hospital Ashok Krishnaji Chandgude, came back and went to Kasba Peth Police Chowki and lodged the complaint. 3.The evidence is that the postmortem on the corpse of Madhukar was conducted on 8th April, 1983, at 9.30 p.m. by Dr. Laxman Govindram Pherwani (P.W. 4). Dr. From the hospital Ashok Krishnaji Chandgude, came back and went to Kasba Peth Police Chowki and lodged the complaint. 3.The evidence is that the postmortem on the corpse of Madhukar was conducted on 8th April, 1983, at 9.30 p.m. by Dr. Laxman Govindram Pherwani (P.W. 4). Dr. Pherwani found the following injuries on the person of the deceased :- (1) A contused lacerated wound 1/2" x 1/6" present on centre of forehead just at the root of nose horizontal in direction. (2) A contused lacerated wound 1" x 1/4" on forehead left side just above the eye-brow horizontal in direction. (3) Swelling due to haemotoma at left parietal left temporal area. All these injuries were anti mortem. They were of recent origin. They were caused due to hard and blunt object. On internal examination he found fracture of vault of the skull. He opined that the deceased died on account of intracranial haemorrhage due to fracture of skull with alcohol intoxiation. In the opinion of Dr. Pherwani, the injuries of the deceased were sufficient to cause death. 4.The case was investigated in the usual manner and thereafter appellant was charge-sheeted In the trial Court the appellant was charged for an offence punishable u/s 302 I.P.C. To the said charge he pleaded not guilty and claimed to be tried. His defence was that of denial. During trial in all prosecution examined five witnesses. Two of them namely Ramakant Ubhe (P.W.1) and Bharat Nijampurkar (P.W. 2) were examined as eye-witnesses. In defence no witness was examined. The trial Court believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above. Hence this appeal. 5.We have heard Mr. S.G. Surana learned Counsel for the appellant and Mrs. Purnima Kantharia (APP) for the respondent. We have also perused the evidence on record. After thoughtfully reflecting over the matter we are satisfied that this appeal deserves to be allowed in part. In our view the conviction of the appellant u/s 302 I.P.C. is unsustainable and instead he deserves to be convicted u/s 325 I.P.C. 6.In our view there can be no manner of doubt that the involvement of the appellant in instant case has been established beyond all shadow of doubt. We have the evidence of two eye-witnesses namely Ramakant Ubhe (P.W.1) and Bharat Nijampurkar (P.W. 2) to prove it. We have the evidence of two eye-witnesses namely Ramakant Ubhe (P.W.1) and Bharat Nijampurkar (P.W. 2) to prove it. Both the witnesses are independent witness and had no axe to grind against the appellant. Both of them have given a plausible reason for their presence at the place of the incident. They allege that they were talking at the electric pole which was situated nearby. At that time the appellant and deceased Madhukar came running, quarreling over real estate. When they tried to intervene, the appellant told them that it was his family affair and they should not intervene. Therefore, they went back and again resumed talking at the electric pole. The evidence shows that at the said time the appellant caught the pant of the deceased and pushed him on the ground. The deceased fell on two stones which were lying nearby. The manner of the incident as furnished by the two eye witnesses is corroborated by the nature of injuries suffered by the deceased. In paragraph three we have detailed the antimortem injuries suffered by the deceased. Their perusal shows that they could have been caused as a result of the impact of fall on stone. We find no such infirmity in the statements of the two witnesses, on the basis of which we could be persuaded to disbelieve the involvement of the appellant in the incident. 7.We accordingly hold that the prosecution has established the involvement of the appellant in the incident. 8.The next question is as to what is the offence which has been made out against the appellant. The evidence of the eye witnesses indicates that there was no malice or ill will between the appellant and his deceased brother Madhukar. It also shows that on the spur of the moment a quarrel was going on between them over real estate. It further shows that the deceased was drunk at that time. It finally shows that it was in such a situation that the appellant pushed the deceased, who as providence would have it, fell on the two stones which were lying nearby. 9.On the above facts, in our judgment neither an offence u/s 302 nor one under section 304 I.P.C. can be said to be made out. It finally shows that it was in such a situation that the appellant pushed the deceased, who as providence would have it, fell on the two stones which were lying nearby. 9.On the above facts, in our judgment neither an offence u/s 302 nor one under section 304 I.P.C. can be said to be made out. However, in our view when the appellant pushed the deceased on the ground on which two stones were lying he could be fastened with the knowledge that grievous hurt, within terms of section 325 I.P.C., could be caused to the deceased. There can be no getting away from the fact that grievous hurt was caused to the deceased because a perusal of the statement of the autopsy surgeon shows that the deceased had sustained fracture of the vault of the skull. 10.This leaves us with the last question namely the sentence to be awarded to the appellant. Mr. Surana vehemently urged that looking to the following circumstances :- (a) the appellant and the deceased were brothers; (b) there was no subsisting malice or ill will between them; (c) quarrel took place between them on the spur of the moment on account of real estate; (d) the appellant has been in jail from 8.4.1983 to 6.10.1983, on which date he was granted bail by this Court; (e) the conduct of the appellant shows that he was repenting immediately after the incident. The evidence of the informant, P.W. 5 P. I. Chandgude shows that when he visited the Sassoon Hospital the same day, wherein the deceased was admitted, he found the appellant, (f) the appellant was aged about 57 years at the time of the incident as is apparent from his statement u/s 313 Cr. P.C. and is now aged about 70 years; and (g) there is nothing to indicate that he has any criminal antecedents, it is a fit case in which the jail sentence of the appellant be reduced the period already undergone by him and some fine which should be directed to be paid as compensation to the widow of the deceased and in case she is not alive, to his legal heirs, be imposed on him. 11.We gave our anxious consideration to the submission canvassed by Mr. Surana. Having regard to the circumstances enumerated in the preceding paragraph it appears to be reasonable. 11.We gave our anxious consideration to the submission canvassed by Mr. Surana. Having regard to the circumstances enumerated in the preceding paragraph it appears to be reasonable. 12.The question is what should be the quantum of the fine which should be imposed on the appellant. After reflecting over the matter we feel that the ends of justice would be satisfied if the appellant is directed to pay a fine of Rs. 30,000/- and two years R.I. in default of its payment. 13. In the result this appeal is partly allowed and partly dismissed. We acquit the appellant u/s 302 I.P.C. and set aside his sentence of life imprisonment on that count and instead convict him under section 325 I.P.C. on which count we sentence him to the period already undergone by him and direct him to pay a fine of Rs. 30,000/- (Rupees Thirty-Thousand ) and two year's R.I. in its default. The fine is to be paid in a period of six months from today, by the appellant in the trial Court and the whole of it shall be paid as compensation to the widow of the deceased Vimal Madhukar Kshirsagar and in case she is not alive, to his legal heirs. As soon as the appellant deposits the fine, the trial Court shall inform the widow of the deceased Vimal Madhukar Kshirsagar about this compensation and in case she is not alive, the legal heirs of the deceased. As soon as the widow of the deceased or the legal heirs of the deceased, as the case may be, appear in the trial Court they shall be paid the compensation. In case the appellant does not pay the fine of Rs. 30,000/- within a period of six months from today he shall be taken into custody to serve out the sentence of two year's R.I. which we have imposed in default of the fine. In case an application for a certified copy of this judgment is made, the same shall be issued on an expedited basis. Appeal partly allowed.