Y. R. TRIPATHI, J. ( 1 ) THIS criminal appeal is directed against the conviction and sentence recorded by Sri J. N. Bansal, the then Sessions Judge Lalitpur in Sessions Trial No. 101 of 1980, State v. Bhai Khan, relating to P. S. Talbehat, District Lalitpur, whereby having convicted the appellant Bhai Khan under Section 302 IPC has sentenced him to imprisonment for life. ( 2 ) THIS prosecution case, in short, is that the appellant is the real younger brother of the deceased Shamsher Khan. At the time of occurrence, both the brothers were living jointly and they owned a bullock. Shamsher Khan wanted to go out after selling that bullock to which the appellant was not agreeable. It is said that around 12 noon on 17. 8 1980, an altercation look place between the two brothers inside their inner courtyard over the disposal of the bullock. Shamsher Khan, as usual, insisted on selling the bullock, whereupon the appellant, enraged over his instance, gave him several blows from the blunt portion of a spade saying that he was very ofien irising on PIling tic Wlkxk and that he would now finish him. On sustaining injuries Shamsher Khan fell down on the ground. Iddu Khan P. W. 1. Hajju P. W. 3 and some others, who, on hearing the altercation between the two brothers, had reached the scene of occurrence, witnessed the incident. The appellant after inflicting injuries to Shamsher Khan went away towards the well in the village. Asgharali, Harnam Singh and a constable accompanied by some others gave a chase to the appellant and apprehended him with the spade, the weapon used in assault. They brought the appellant at his house and tied him with the help of a rope. Iddu Khan, P. W. 1 with injured Shamsher Khan set out for the police station on a bullockcart but hardly had he settled a distance of three furlongs and had reached out of his village, Shamsher Khan died. He, therefore, brought the dead body of Shamsher Khan back to the place of occurrence and placed it there. Iddu Khan, P. W. 1 with injured Shamsher Khan set out for the police station on a bullockcart but hardly had he settled a distance of three furlongs and had reached out of his village, Shamsher Khan died. He, therefore, brought the dead body of Shamsher Khan back to the place of occurrence and placed it there. He then got a written report prepared on this dictation by one Govind Singh, Pradhan of the village and took it to the police station Talbehat where he made over that written report to Head Constable Shiv Singh P. W. 4, who on the basis of that report drew a chik F. I. R and registered a case at 1-30 p. m on 17. 8. 1980. Sub Inspector Surya Prasad Agnihotri P. W. 5, who at that time was posted as Station Officer P. S. Talbehat, swung into action. He proceeded to the spot, held inquest on the dead body of the victim and after completing all other necessary formalities dispatched the dead body for its postmortem examination which was conducted on 18. 8. 1980 at 12 noon by Dr. Har Narain, P. W. 2, then posted as Medical Officer in the District Hospital, Lalitpur. ( 3 ) ACCORDING to Dr. Har Narain, the deceased was of average built and about 36 years old. He had died about a day before. He found both the eyes of the deceased partially closed, oozed clotted blood on both ears and nostrils and food materials coming out through mouth and nostrils. He also noticed the following antemorterm injuries on the person of the deceased:1. Lacerated wound 4 cms x 1 cm x bone deep on right side head, 7 cms above from left ear and left eyebrow, margins lacerated. 2. Lacerated wound 3 cms x 2 cms x bone deep; just front of left ear oblique. 3. Lacerated wound 3 cms x 1 cms x bone deep, left side head just below and above left ear. 4. Lacerated wound 3 cms x 1 cm x bone deep on back of right ear on mastoid process. 5. Lacerated wound 2 cms x 1 cm x bone deep on front of right ear. Margins lacerated clotted blood present. According to Dr. Har Narain, the deceased had died due to head injuries sustained by him. 4. Lacerated wound 3 cms x 1 cm x bone deep on back of right ear on mastoid process. 5. Lacerated wound 2 cms x 1 cm x bone deep on front of right ear. Margins lacerated clotted blood present. According to Dr. Har Narain, the deceased had died due to head injuries sustained by him. ( 4 ) THE police of P. S. Talbehat after due investigation presented chargesheet under Section 302 I. P. C. against the appellant which culminated into his trial. The case of the appellant was that of denial and false implication. ( 5 ) THE prosecution during the course of trial examined Iddu Khan as P. W. 1, Dr. Har Narain as P. W. 2, Hajju as P. W. 3 Head Constable Shiv Singh as PW4, S. I. Surya Prasad as P. W. 5 and Sahid Mohammad as P. W. 6 and filed certain affidavits of formal witnesses. The learned court below on conclusion of the trial held the appellant guilty of the charge under Section 302 IPC and sentenced him as aforesaid, dissatisfied from which the appellant has come up in this appeal. ( 6 ) THE learned counsel for the appellant assailed the conclusions of the learned trial court mainly on the ground of insufficiency and incredibility of the prosecution evidence and also disputed the propriety of conviction under Section 302 I. P. C. and the sentence awarded to the appellant therefor. His main contention was that the prosecution evidence consists of Iddu Khan P. W. 1, an interested witness and Hajju P. W. 3, a resident of another village, whose presence on the spot is highly doubtful. Iddu Khan, it would be found, has admitted that about 10-12 years prior to his evidence, there had been some litigation between his father on the one hand and the deceased and his brother, the appellant, on the other over some landed property. He has, however, denied having any animosity with the family of the appellant or the deceased. The house in which he resides is divided by Jhankhar from the house of the appellant, suggesting an inference that his house and the house of the appellant at some point of time must have been one. He has stated that he had, just before the incident, returned from his field which he had cultivated on batal, for taking his lunch. He has stated that he had, just before the incident, returned from his field which he had cultivated on batal, for taking his lunch. A futile attempt was made by the learned counsel for the appellant on the basis of his replies to leading questions that he had arrived at the spot after the incident and had no occasion to witness the actual assault. His statement, taken as a whole, however, suggests that he had seen the appellant picking up the spade and assaulting the deceased. True that in one of the leading questions as to whether he had seen the deceased fallen down on a stone in injured condition he answered in the affirmative but his this reply will not be looked into in isolation. He being a village rustic, unaware of intricacies of cross-examination, appears to have been misled by the leading question. A careful scrutiny of his evidence goes to show that he had arrived at the scene of occurrence while an altercation was still going on between the appellant and his brother and had witnessed the appellant giving the fatal blows with the spade to his brother. His evidence further shows that the litigation between his father and the appellant and the deceased had hardly any impact on his conscious or subconscious mind at the time of occurrence. He is not even aware of the fact whether he had any share in the properties held by the appellant and the deceased and has admitted that the landed properties stand recorded in revenue records jointly in the names of the appellant and his deceased brother. So far as his presence on the spot is concerned, that appears natural and probable. His house is part of the same house, half of which was in the occupation of the appellant and the deceased. His evidence finds full support from the evidence of Hajju, P. W. 3, who, on hearing the altercation between the appellant and his deceased brother which preceded the actual incident, was attracted on the scene of occurrence from the fair price shop of one Bhiyadin situated nearly the house of the appellant, where he had gone to purchase kerosene oil. His evidence finds full support from the evidence of Hajju, P. W. 3, who, on hearing the altercation between the appellant and his deceased brother which preceded the actual incident, was attracted on the scene of occurrence from the fair price shop of one Bhiyadin situated nearly the house of the appellant, where he had gone to purchase kerosene oil. Hajju P. W. 3, though not a resident of the village of the incident, was at that time under the employment of one Asghar of that AIle and he h tisfctoity aaiunti for his presence on the spot. He is not shown to be in any way inimical to the appellant. He has stated that after the incident, the wife of the appellant had entrusted certain agricultural produce to him for purchase of a Saree for her mother-in-law from the sale proceeds thereof and that he had brought the Saree after disposing of the foodgrain so entrusted to him. This speaks of his normal and cordial relationship with the family of the appellant. ( 7 ) BESIDES the aforesaid two factual witnesses, one Asghar was also said to be present at the time of incident, but he has not been produced. The learned counsel for the appellant urged that non-production of Asghar, a material witness and resident of the same village creates suspicion about the genuineness of the prosecution case. To our mind, however, non-production of Asghar by the prosecution can hardly be taken to have any impact on the genuineness of the prosecution verision. it a cartlinal piindple ctlaw that ehience not ountd, but ehed. The afbresaki twd factual witr examined by The pidion have conntty spprtd the ptaifin ca and There appears ro rn or mctie on Thr rt for giang fa evi:lerice. ( 8 ) THE incident, it would be found, had taken place in broad daylight. Dr. Har Narain, P. W. 2, who held autopsy on the dead body, has admitted either way variation of two hours, at the most, in the time of occurrence which works out between 10 a. m to 2 p. m on 17. 8. 1980 when there would have been no chance of any wrong identification or misidentification of the assailant. The F. I. R was lodged at 1-30 p. m at P. S. Talbehat which lies at a distance of six and a half miles from the place of occurrence. 8. 1980 when there would have been no chance of any wrong identification or misidentification of the assailant. The F. I. R was lodged at 1-30 p. m at P. S. Talbehat which lies at a distance of six and a half miles from the place of occurrence. The promptitude with which the F. I. R is found to have been lodged also rules out any deliberation or consultation on the part of the informant. An attempt was though made to show that the F. I. R was concocted after the visit of the Investigating Officer on the spot, but there is no material on record to support such an inference. ( 9 ) IT was then argued that had the appellant executed the crime, he would not, after the incident, have stayed nearly the place of occurrence facilitating his apprehension by the villagers. This argument relates to behavioral conduct of the appellant and has nothing to do with the merit of the case. It is a matter of common knowledge that different persons act differently in a given circumstance. It was not unlikely that the appellant having no criminal background would not have comprehended such a grave repercussion of his act which was done in a fit of rage during the course of an altercation with none else than his real elder brother. ( 10 ) THUS after giving a careful thought to the facts and circumstances of this case, we are of the view that the learned trial court has rightly, relying on the testimonies of Iddu Khan P. W. 1 and Hajju P. W. 3, concluded about the complicity of the appellant in the incident and there does not appear any infirmity in it. ( 11 ) IT was lastly urged that even from the materials brought on record, offence under Section 302 I. P. C. for which the appellant has been convicted by the learned trial court, is not made out. There appears to be force in this argument. From the evidence adduced, it is found that the appellant and the deceased were living jointly at the time of occurrence. They had very little landed property. They had also only one bullock. Their source of livelihood was agriculture. In such a situation, the disposal of bullock would have adversely affected their livelihood. From the evidence adduced, it is found that the appellant and the deceased were living jointly at the time of occurrence. They had very little landed property. They had also only one bullock. Their source of livelihood was agriculture. In such a situation, the disposal of bullock would have adversely affected their livelihood. It is in evidence that during the course of altercation, the deceased was insisting on selling the bullock. It was, therfore, but natural on the part of the appellant to have got enraged with the deceased and lost control over himself. It is also in evidence that the accused after picking a spade dealt certain blows to the deceased. The appellant had not to move anywhere to take the spade with which he assaulted the deceased. The spade was lying there in the inner courtyard itself. Keeping in view the social background and the family status of the appellant it is found that the appellant during the course of sudden quarrel inflicted the injuries to the deceased in a fit of passion. Definitely this act of the appellant falls within Explanation I to Section 300 I. P. C. bringing the offence proved to be one punishable under Section 304 Part-I I. P. C. The conviction thus recorded by the learned trial court needs to be altered from Section 302 I. P. C to Section 304 Part-I I. P. C. As regards the sentence, considering the fact that the appellant is the sole bread earner in his family and has also undergone the mental torture for a long time on his conviction, we are of the opinion that a sentence of seven years R. I. would adequately serve the ends of justice. ( 12 ) ACCORDINGLY the appeal is allowed partly. The conviction of the appellant under Section 302 I. P. C. is altered into one Section 304 Part I, I. P. C. and he is sentenced to undergo seven years rigorous imprisonment for that offence. ( 13 ) THE appellant is on bail. He shall be taken into custody to serve out the sentence. ( 14 ) LET a copy of this judgment be sent to the Chief Judicial Magistrate, Lalitpur, who shall cause the appellant Bhai Khan arrested and sent to jail to serve out the sentence awarded to him. He shall also submit compliance report within two months. Appeal allowed partly. .