Judgment B.N.P.Singh, J. 1. The sole appellant suffered conviction under Sections 302 and 307 of the Indian Penal Code (IPC) on being tried by the additional Sessions Judge 1st, Gaya, and was sentenced to suffer rigorous imprisonment for life and for a term of seven years on these counts respectively with a direction that both the sentences shall run concurrently. 2. The factual matrix of the case depicts killing of Surendra Mistri on a most trivial domestic issue which usually happens in families. It is alleged that on 1st of April, 1992, when Surendra Mistry came to the house of the appellant to take his sister Meena Kumari (PW 2) to his house on occasion of Chhath festival, the appellant resisted his proposal. It was alleged that the appellant wanted to permit Meena Kumari to go to the house of her parents only after harvesting of the crops, which was going on in the field, was over. An altercation ensued between appellant and Surendra Mistry and it is alleged that when Meena Kumari expressed her willingness to go with her brother. the appellant inflicted a blow with farsa on her person causing bleeding injury on her neck and cheek. When the deceased came for rescue of his sister, who had suffered sharp cutting injury at the hands of the appellant, it was alleged that the appellant dealt severe blows on him causing sharp cut injuries on his neck and before any medical aid could be made available to Surendra Mistry, he succumbed to the injuries and with these narrations made by chaukidar Gopal (PW 5), First Information Report was drawn up at Sherghati Police Station by Jainath Singh, Sub-Inspector of Police, who happened to be PW 7 of the case. After the Police was set in motion, investigation commenced and in the process of investigation. Police Officer recorded statement of witnesses, visited place of occurrence. prepared inquest report of the dead body of the deceased, sent the dead body to mortuary for post- mortem examination and on receipt of post mortem examination and on receipt of post mortem report and conclusion of investigation, eventually laid charge-sheet before the court and the appellant on being committed to the Court of Session was put on trial. In the eventual trial. In the eventual trial. prosecution examined altogether eight witnesses including injured Meena Kumari, doctor, Police Officer and also other witnesses and the trial court on appreciation of evidences placed on record, finding the appellant guilty rendered verdict of guilt and sentenced the appellant in the manner stated above. 3. Coming to the evidences placed on record. one would find Meena Kumari (PW 2) narrating before the Court that while harvesting operation was being carried out in the field and she was working there. the appellant began to abuse her when she wanted to go to her parents for which her brother had come. The appellant, she would state, was resisting. as harvesting of crops was still being carried out and he stated that he would permit her to go to her parents house only after harvesting of the crop was over in the field. When she insisted to go. the appellant dealt farsa blow on her left cheek and when Surendra Mistry came for rescue, the appellant dealt blows with farsa on him also when on receipt of injury, he dropped to the ground and died subsequently. Sheo Kumar Mistri (PW 1) stated about the dead body of Surendra Mistry lying behind his house. He would state that the deceased had come to his house to take his sister to her parents house. Since this witness did not render statement in positive terms as to how Surendra Mistry met his homicidal death and also how Meena Kumari. who happened to be his wife, sustained injuries on her person, the witness was declared hostile by the State and from the tenor of his evidence it would appear that he did not claim at any stage to be an eye-witness. His attention was drawn by the State towards his previous statement made before the Police and it seems that even though the Investigating Officer was examined by the prosecution. statements allegedly rendered by this witness before the Police were never put before him. Be that as it may, there was nothing in his evidence to consider this witness to be ocular. 4. Manager Bhuiyan (PW 3) was tendered by the prosecution and there was nothing material in his evidence to merit consideration. statements allegedly rendered by this witness before the Police were never put before him. Be that as it may, there was nothing in his evidence to consider this witness to be ocular. 4. Manager Bhuiyan (PW 3) was tendered by the prosecution and there was nothing material in his evidence to merit consideration. PW 4 too was declared hostile to the State and his attention too was drawn towards his early statement made before the Police which was never put before the I.O. when he was in dock. Gopal Paswan (PW 5), who was chowkidar of the halka, stated to have submitted a written report to the Police on receipt of information about killing of Surendra Mistry in village Anugrahi. He would reiterate his version rendered before the Police in his early statement. Dr. Kapildeo Prasad (PW 6) stated to have held autopsy over the dead body of Surendra Mistry when he noticed incised wound of 3" x 2" x 3" over right side of the neck. The wound was directed downward and towards left side. The injuries found on the person of the deceased in the estimation of the doctor was ante-mortem and grievous in nature which was produced by sharp cutting weapon. Death in the opinion of the doctor was due to shock and haemorrhage due to the injuries noticed on the person of the deceased. Jainath Singh, Sub-Inspector of Police (PW 7) stated to have drawn up First Information Report, on the statement of the chaukidar of halka, pursuant to which investigation was carried out by him. He stated to have visited place of occurrence which was a field in which wheat crop had been planted and in the adjacent field which was onion field of Tejan Yadav. there were marks of trampling by foot-prints. He stated to have recorded statement of witnesses, collected blood stained earth from the place of occurrence, prepared inquest report over the dead body of the deceased and on receipt of post mortem report. laid charge-sheet before the Court. Evidence of PW 8 Mohan Prasad. who was an advocate clerk, was formal in nature and he brought on record. injury report Exhibit 5. This is all the evidence that has been adduced on behalf of the prosecution. 5. Commenting upon the credibility of the witnesses examined on behalf of the State to bring home charges against the appellant. Evidence of PW 8 Mohan Prasad. who was an advocate clerk, was formal in nature and he brought on record. injury report Exhibit 5. This is all the evidence that has been adduced on behalf of the prosecution. 5. Commenting upon the credibility of the witnesses examined on behalf of the State to bring home charges against the appellant. learned counsel for the appellant would urge that on going through the evidence placed on the record. one cannot help feeling that even though there was occasion for independent witnesses, who were suggested to have witnessed the incident. they had turned volte-face to the prosecution and our attention on this score was drawn to the evidence of Sheo Kumar Mistry (PW 1) and Mahendra Prajapati (PW 4). In quick succession arguments were canvassed at Bar that if the evidence of these witnesses. who did not claim to be ocular before the Court, was excluded from consideration, the prosecution was left with the solitary evidence of Meena Kumari (PW 2) which too. it is urged, was not free from blemishes. Contentions were raised that attention of this witness was drawn by the defence towards an affidavit allegedly filed by her before the Court disowning allegations attributed to the appellant about dealing blows with sharp-edged weapon on the deceased. It is alleged that likewise. even in her statement which she rendered before the Magistrate under Section 164 of the Code of Criminal Procedure, Meena Kumari would not claim to be ocular witness. as she stated to have known about killing of her brother from some others. The defence raised at Bar to impeach testimony of Meena Kumari would. however, deserve rejection for the simple reason that though attention of this witness was drawn by the defence towards her early version which she rendered before the Police, even when the I.O. was in the dock of the Court, narrations allegedly made by the witness were never put to him and hence the defence cannot be benefitted simply by drawing attention of the witness whose testimony is sought to be impeached at trial. Likewise, though credibility of this witness was sought to be impeached also on the premises that there were variations in the statement which she allegedly made before the Magistrate under Section 164 of the Code of Criminal Procedure, since the said statement was not brought on the record, there was no good evidence before the court to hold this witness incredible. On going through her evidence, we find her quite credible which merits acceptance in entirety. Even from the genesis of the incident, suggesting that after the appellant resisted her from going to her parents house on the occasion of Chhath festival, Meena Kumari despite his reluctance, was willing to go and it is in that backdrop that she suffered injuries at the hands of the appellant which was followed by assault on her brother too, who died on receipt of those injuries sustained by him. True it is that some of the prosecution witnesses were either tendered or had turned hostile to the State but regard being had to the evidence of the sole eye-witness Meena Kumari and also the evidence the doctor affording corroboration to her evidence about Surendra Mistry sustaining grievous injuries on his person by sharp-edged weapon, which were sufficient in ordinary course of nature to cause death. we find that evidence of these two witnesses could not be discarded and that apart even the I.O. who visited the place of occurrence, found drops of blood on the earth for which blood stained earth was seized by him. Even there was evidence of marks of violence in the onion field as crops were found trampled due to foot prints. 6. Though the appellant suffered conviction also under Section 307. IPC on the strength of injury report brought on the record. it appears. that the doctor who examined Meena Kumari was not examined at trial and regard being had to the contentions raised at Bar. we. findings no good evidence. set aside the conviction of the appellant under Section 307, IPC and also the sentence imposed on him on this count. 7. Learned counsel would also challenge the conviction of the appellant under Section 302, IPC and would urge that as the incident took place in the spur of moment and in heat of passion. no intention can be attributed to the appellant for causing homicidal death of the deceased. 7. Learned counsel would also challenge the conviction of the appellant under Section 302, IPC and would urge that as the incident took place in the spur of moment and in heat of passion. no intention can be attributed to the appellant for causing homicidal death of the deceased. We find considerable force in the argument of the learned counsel and regard being had to the circumstances of the case. which would unerringly suggest that the incident occurred on some trivial matter. which usually happens in the family on some domestic issues, the overfact attributed to the appellant cannot be clothed with the intention of causing homicidal death of the deceased and appellant as such can be attributed to have dealt severe blows on the deceased with the knowledge that it may cause death or it was likely to cause such bodily injury which may cause death of the deceased. In view of these circumstances. while conviction recorded by the trial Court under Section 302, IPC and also sentence imposed upon him are set aside. Appellant is convicted under Section 304, Part II of the Indian Penal Code. It is brought to our notice. which is also borne out by the record, that the appellant happened to be in custody for about nine years and in that view of the matter, sentence is awarded to him to the extent of period already undergone. 8. In the result. this appeal is dismissed with the above modifications in the judgment of conviction and sentence. Let appellant Ram Khelawan Mistry be released from jail custody forthwith, if not wanted in any other case.