Judgment P.K.Sarkar, J. 1. This appeal arises out of the judgment and order dated the 3rd September, 1991 passed by Shri Pashan 1st Additional Sessions Judge, Munger in Sessions Trial No. 64 of 1990, by which the sole appellant was found guilty under Section 302 of the Indian Penal Code (hereinafter to be called as "the Code" for short) and was sentenced to undergo R.I. for life. 2. The facts leading to this appeal are that Geeta Devi, wife of Asharfi Yadav of village Singhia, P.S. Naya Ram Nagar, District Munger gave her Fardbeyan before the police Shri R.D. Singh, A.S.I. of Kotwali police station, stating therein that on that day, i.e. 10.10.1989 she along with her husband Asharfi Yadav (deceased) had gone to see Mela in the Durga Asthan of the village. In the said Mela she came to know that the appellant Ramji Yadav, who is own brother of her husband (i.e. her Bhaisur) picked up a she goat (pathi) from her house and killed the same. At about 10 p.m. when they returned back to their house they met the accused-appellant near the house of one Dashrath Chaudhary. Her husband asked him as to why he killed his she-goat. This enraged the accused-appellant and so he became furious and said that he would kill him. Saying so he fired with a pistol towards Asharfi Yadav. He received injuries and subsequently died in the hospital. Thereafter the informant raised alarm and Lakhan Yadav (P.W. 2). Dasrath Choudhary (P.W. 1), Dasrath Yadav (P.W. 4), Kishori Choudhary (not examined) and Rameshwar Yadav (P.W. 5) father of the informant, who was present there, also saw the occurrence. On the basis of the aforesaid Fardbeyan of the informant a formal F.I.R. was drawn up against the accused appellant under Section 302 of the Code and Section 27 of the Arms Act. The police took up investigation into the case and submitted charge-sheet against the accused-appellant. 3. On that the accused-appellant was found guilty and was convicted and sentenced in the manner as aforesaid. 4. The defence of the accused-appellant appears to be total denial of the alleged occurrence and the appellant has submitted that he has been falsely implicated in this case by the informant, as she is entangled with Dashrath Yadav (P.W. 4) her brother-in-law, and as her husband did not like such relation, he was killed by Dashrath Yadav. 5. 4. The defence of the accused-appellant appears to be total denial of the alleged occurrence and the appellant has submitted that he has been falsely implicated in this case by the informant, as she is entangled with Dashrath Yadav (P.W. 4) her brother-in-law, and as her husband did not like such relation, he was killed by Dashrath Yadav. 5. The prosecution in all has examined six witnesses in this case, out of whom P.W. 6 Geeta Devi is the informant in this case and also the eye-witness to the occurrence. P.W. 5 Rameshwar Yadav is father of the informant and P.W. 4 Dashrath Yadav is brother-in-law of the informant and both of them have also claimed themselves as eye-witnesses to the said occurrence. P.W. 4, P.W. 5 and the informant (P.W. 6) all have consistently stated that on the day of occurrence they had gone to see the Mela in Durga Asthan in the village, where the informant and her husband Asharfi Yadav were informed that the accused-appellant has killed their she-goat (pathi). So all of them returned towards their house and in the way near the temple of Bajrangbali Dashrath Yadav (P.W. 4) parted, but when he was still standing there, they reached near the house of Dashrath Choudhary (P.W. 1) where they found accused-appellant Ramjee Yadav. There was some altercation in between Asharfi Yadav husband of the informant (P.W. 6) and Ramjee Yadav. Thereafter Ramjee Yadav took out his pistol and fired at Asharfi Yadav on his chest, as a result he received injuries and subsequently died in the hospital. 6. P.W. 4 Dashrath Yadav has claimed that he heard Halla where he was standing after parting with the informant, her husband and his father-in-law and saw that the accused-appellant fired at Asharfi Yadav and he fell down. Thus the evidences of the aforesaid three witnesses are fully consistent with each other and they have supported the prosecution case that the accused-appellant fired at Asharfi Yadav, husband of the informant, who fell down and subsequently died. 7. The learned Counsel for the appellant has submitted that all the three witnesses are interested persons, inasmuch as they are close relation. P.W. 5 is father of the informant and father- in-law of the deceased and P.W. 4 is husband of the sister of the informant. 7. The learned Counsel for the appellant has submitted that all the three witnesses are interested persons, inasmuch as they are close relation. P.W. 5 is father of the informant and father- in-law of the deceased and P.W. 4 is husband of the sister of the informant. It is an established principle of law that only because the witnesses are relations, their evidences cannot be fully discarded. The only thing which the law requires is that such evidences should be viewed with caution. The manner in which the occurrence happened and as the witnesses claimed that they were together at that time, there is nothing that their evidence can be disbelieved. 8. P.W. 1 Dashrath Choudhary, P.W. 2 Lakhan Yadav and P.W. 3 Kishori Choudhary have been declared hostile by the prosecution, as they did not support their earlier statement made before the police in which they had supported the occurrence. There is nothing of importance in their cross-examination also, The Investigating Officer has not been examined in this case. Hence their previous statements made before the police could not be ascertained. 9. P.W. 8 Jai Ram Singh and P.W. 9 Dilip Prasad, who were Advocates Clerks are formal witnesses, inasmuch as P.W. 8 has simply proved the Fardbeyan. written by the A.S.I. Shri R.D. Singh, marked as Ext. 2 and P.W. 9 has proved the formal F.I.R. marked as Ext. 3. Both of them in their cross-examination have stated that they have no knowledge of the case. 10. P.W. 7 is Dr. Dharmendra Kumar Sinha. He has stated that on 11.10.1989 at 11.30 a.m. while he was posted as C.A.S. at Sadar Hospital, Munger, he held postmortem examination on the dead body of Asharfi Yadav son of Ghutan Yadav of village Singhia, P.S. Naya Ram Nagar in the District of Munger and found the following ante-mortem injuries : "(1) One lacerated with inverted margin almost round 1" in diameter, wound on the chest joint above the clevicle in mid supraclericular region on the left side. The wound was cavity deep. On dissection there was laceration of muscle of chest, upper part of the left lung, middle lobe of the lung and the posterior lobe of the lung. The wound was cavity deep. On dissection there was laceration of muscle of chest, upper part of the left lung, middle lobe of the lung and the posterior lobe of the lung. One metallic object was lodged in the posterior wall of the chest in the back near inferior angle of the left scapula..." P.W. 7 also stated that in his opinion the death was caused by haemorrhage and shock due to the aforesaid injuries. He has proved the postmortem examination report marked as Ext. 1. There is nothing much of importance in his cross-examination. From the aforesaid evidence of the doctor it will, therefore, appear that he found one metallic object inside the injury, which shows that the injury was caused by fire-arm. 11. Thus the evidence of the doctor (P.W. 7) also corroborates the fact that Asharfi Yadav died due to the injuries on his chest caused by fire-arm. The homicidal death of the deceased (Asharfi Yadav) is thus established. The defence has also not disputed the death of the deceased Asharfi Yadav. But submitted that the appellant has nothing to do with it. The appellant also claimed that the informant was entangled with the prosecution witness 4, which was not liked by the husband of the informant (deceased). Hence P.W. 4 committed his murder. The question that arises for consideration, therefore, is what whether the prosecution has been able to establish the fact by cogent evidence that the appellant committed the murder of the deceased Asharfi Yadav in the manner as alleged. 12. Now the three eye-witnesses, namely, P.W. 4, P.W. 5 and P.W. 6 examined in this case have fully corroborated the fact that the aforesaid injury was caused by the appellant Ramjee Yadav by firing on the chest of the deceased Asharfi Yadav by his pistol on the night of the occurrence. It also appears that the occurrence happened due to a quarrel between the appellant and the deceased who are brothers over killing of a she-goat belonging to the deceased by the appellant. The other three witnesses, namely, P.W. 1, P.W. 2 and P.W. 3, however, have not supported the prosecution case and were declared hostile by the prosecution. P.W. 8 and P.W. 9 are formal witnesses. 13. Now the Investigating Officer has not been examined in this case. The other three witnesses, namely, P.W. 1, P.W. 2 and P.W. 3, however, have not supported the prosecution case and were declared hostile by the prosecution. P.W. 8 and P.W. 9 are formal witnesses. 13. Now the Investigating Officer has not been examined in this case. However, it is an established principle that only due to non-examination of the Investigating Officer the prosecution case cannot be thrown out. It has to be considered whether non-examination of the Investigating Officer has prejudiced the defence case in any manner. In the instant case nothing has been brought to our notice by which a conclusion can be drawn that the non-examination of the I.O. caused any prejudice to the defence. Accordingly, I find that the prosecution has been able to establish the fact that the appellant caused death of Asharfi Yadav (deceased) on the night of the occurrence beyond all shadow of reasonable doubts. 14. The learned Counsel for the appellant during hearing of the appeal made a submission that even if the aforesaid death was caused by the appellant, is established, the facts on the record will show that the appellant had no intention to commit murder of the deceased. Both of them are brothers and the occurrence is alleged to have happened on a simple matter of killing of a she goat belonging to the deceased Asharfi Yadav. It also appears that there was an altercation between the appellant and the deceased and only one fire is alleged to have been made by the appellant and there was no repetition of the fire. In case the intention of the appellant would have been to commit murder of his brother Asharfi Yadav, he may have fired more than once. However, the entire act (of firing) happened as appears, on a spar of the moment the basis of the aforesaid fact, it is submitted by the learned Counsel for the appellant that this case does not come within the purview of Section 302 of the Code, rather it will come under the purview of Section 304, Part I of the Code. 15. From the facts stated above, it appears that the appellant fired from pistol only once on the chest of the deceased, as a result he fell down and subsequently died in the hospital. 15. From the facts stated above, it appears that the appellant fired from pistol only once on the chest of the deceased, as a result he fell down and subsequently died in the hospital. It also appears from the evidence mentioned above that there was quarrel in between the appellant and the deceased, who are brothers, on the question of killing of a she goat by the appellant belonging to the deceased and in that quarrel the appellant suddenly fired one shot and the deceased fell down and subsequently died. There was no repetition of fire. This fact, therefore, shows that the submission of the learned Counsel for the appellant has enough force behind it. The learned Counsel for the State also has not controverted this point. Therefore, the act of the appellant does not come under the purview of Section 302 of the Code, but it will come under Part I of Section 304 of the Code as culpable homicide not amounting to murder. 16. Accordingly, the appellant is held guilty under Section 304, Part I of the Code and convicted and sentenced to undergo RI for ten years. The impugned order of conviction and sentence is modified and confirmed to that extent and this appeal is hereby dismissed with the aforesaid modification.