J.N. PATEL, J.:- The Appellant/State has preferred this appeal, challenging the judgment and order dated 10th of May, 1996 passed by the Sessions Judge, Amravati in Sessions Case No.106/95 in which the respondent/accused Shankar came to be acquitted of the charge of having committed murder of his brother Babulal Bhimrao Binjade and caused hurt to his wife P.W.7 Bilobai. 2. In nutshell, it is the prosecution case that deceased Babulal and respondent/ accused Shankar were real brothers. Earlier the deceased with his family was residing in Madhya Pradesh. Respondent/accused Shankar brought them to Pusla prior to 5-6 months of the incident to get him settled there, as at the native place deceased Babulal not only used to quarrel with his father but also create nuisance in the locality, under the influence of liquor. On the day of the incident at about 8.30 p.m. when deceased Babulal was to take his dinner, the respondent/accused Shankar came to the hut of deceased and called him out. They both abused and quarrelled under the influence of liquor and in the said quarrel respondent/accused Shankar assaulted his brother Babulal with the stick (Article 7) and when his wife P.W.7 Bilobai came out, he assaulted her also and her son Subhash (P.W.8). It appears that, in the quarrel respondent/accused Shankar also suffered some injuries but as Babulal and Bilobai fell down, P.W.8 Subhash ran to the police station and came with the Police. All the injured in the incident including respondent/accused Shankar were taken to the hospital where they came to be examined by P.W.9 Dr. Ramesh Patil. Injured Babulal and Bilobai were sent to the General Hospital, Amravati. At General Hospital, Amravati Babulal Bhimrao Binjade succumbed to his injuries, therefore, inquest panchanama (Exh.18) was prepared and his body was sent for autopsy, which was conducted by Dr. Nalini Shinde, who, on examination prepared the post mortem report (Exh.21). The deceased was found to have suffered in all nine injuries out of which injury no.9 was found sufficient in the ordinary course of nature to cause death. In the opinion of Dr. Nalini Shinde, the external injuries found on the body of the deceased could be caused by stick (Article 7). The police, in the course of investigation, recorded statements of the family members of both the brothers. Spot panchanama was conducted, at the instance of respondent/accused Shankar. In the opinion of Dr. Nalini Shinde, the external injuries found on the body of the deceased could be caused by stick (Article 7). The police, in the course of investigation, recorded statements of the family members of both the brothers. Spot panchanama was conducted, at the instance of respondent/accused Shankar. Stick (Article 7) was discovered from his house. After completion of the investigation charge-sheet came to be filed and that is how the case against the respondent/accused was, committed to the court of Sessions. 3. The learned Trial Court, on the basis of medical evidence of P.W.1 Dr. Nalini Shinde and post mortem report, had no hesitation in arriving at a conclusion that the death of Babulal was homicidal but found that the prosecution has failed to prove that it is the respondent/accused Shankar who committed murder of Babulal and caused voluntarily hurt to Bilobai and her son Shankar by means of stick beyond reasonable doubt and acquitted the respondent/accused. 4. Mr. Sonak, the learned Additional Public Prosecutor has submitted that the learned trial court having accepted the prosecution case that the quarrel took place between two brothers in which the respondent/accused, deceased Babulal and P.W.7 Bilobai having suffered injuries, and that the deceased Babulal having succumbed to the injuries was not justified in acquitting the respondent/accused of the charge under Section 302 and 324 of IPC. It is submitted that the learned trial court has not appreciated the evidence in proper perspective, which led to the acquittal of the respondent/ accused, 'which has resulted in miscarriage of justice and, therefore, the judgment and order of the learned trial court acquitting the respondent/accused of the charges of committing murder of his brother Babulal and causing injuries to his wife P.W.7 Bilobai deserves to be quashed and set aside and the respondent/accused should be punishable in accordance with law. 5. Mr. M. R. Daga, the learned counsel for the respondent/accused submitted that the learned trial court has analysed the evidence of the two witnesses namely P.W.7 Bilobai and P.W.8 Subhash and found that they being interested witnesses, their evidence is not reliable and further, as the prosecution failed to bring on record the genesis of the offence by explaining the injuries suffered by the respondent/accused, the prosecution has failed to prove the charges against the respondent/ accused beyond shadow of doubt. 6. Mr. 6. Mr. Daga submitted that in cases of appeal against acquittal, the High Court normally does not interfere with the view taken by the trial court. Mr. Daga further submitted that the learned trial court has taken a view which is plausible from the evidence on record and, therefore, does not call for any interference and same deserves to be dismissed. 7. In so far as the incident as brought on record by the prosecution is concerned, the same is not much disputed. There are only four eye-witnesses to the incident namely P.W.2 Vatsala Binjade, P.W.3 Sanjay Binjade who are the wife and son of respondent/accused Shankar and of course it is not expected of them to depose against their own husband and, therefore, they turned hostile and have been discarded on this count. The other set of witnesses are P.W.7 Bilobai and P.W.8 Subhash i.e. wife of deceased Babulal and his son, who have narrated the incident explaining the circumstance which led to the quarrel and in what manner respondent/accused Shankar, who was armed with a stick assaulted his brother Babulal, his wife with the stick and P.W.8 Subhash, who ran away to the police station to fetch the police. What we find from the evidence of P.W.7 Bilobai and P.W.8 Subhash is that the quarrel did take place between respondent/accused Shankar and deceased Babulal, who were brothers, and their family members are the natural witnesses to the incident. P.W.7 Bilobai has deposed that on the day of the incident at about 8.00 p.m. in the evening, she was engaged in cooking after returning from Bazar. Her husband was lying out side the house. She told her husband that the meal was ready. So her husband came inside the house. Her son P.W.8 Subhash was present in the house. Respondent/accused Shankar had come and asked them to come out of house. Accordingly, she came out of the house. Shankar assaulted her with a stick on her head due to which she fell down. Then her husband came out. Respondent/accused Shankar delivered a stick blow on his head. According to her, 2-3 blows were given by respondent/accused Shankar on the head and body of her deceased husband. Due to the assault she and her husband became unconscious and her son Subhash started running. He was also assaulted. Then her husband came out. Respondent/accused Shankar delivered a stick blow on his head. According to her, 2-3 blows were given by respondent/accused Shankar on the head and body of her deceased husband. Due to the assault she and her husband became unconscious and her son Subhash started running. He was also assaulted. Then one person came and accosted the respondent/accused and took him by the side. According to her, when her son returned with the police, they were taken to Pusla hospital along with the respondent/accused and there the doctor gave them medical treatment. Police had arrived at the hospital. She lodged report (Exh.35). She has further stated that her husband was taken to Irvin Hospital, Amravati where he died on the same night at about 3 O'clock. She has stated that their houses are adjoining each other and on earlier occasion also, a month prior to the incident, respondent/accused Shankar had beaten her, report of which was lodged at the Police Station and her husband was required to be admitted in the Irvin Hospital, Amravati. She stands corroborated by the evidence of P.W.8 Subhash, who is her son whose presence at the scene of occurrence cannot be disputed. Therefore, what transpires from the evidence of witnesses is that Babulal succumbed to the injuries suffered by him at the hands of respondent/accused Shankar in the quarrel and P.W.7 Bilobai also suffered the injuries. The trial court in his judgment though has discussed the evidence on record in details, it committed an error while appreciating the evidence firstly on the basis that the evidence of P.W.7 Bilobai and P.W.8 Subhash becomes doubtful for the reason that the prosecution did not explain the injuries appearing on the person of the respondent/accused. According to P. W.9 Dr. Ramesh, the respondent/accused Shankar was also found to have suffered the following injuries on his person. 1. Oblique contusion on front of chest elongated 3" x ¼" superficial. 2. Elongated contusion on back below left side of scapula obliquely ¾" x ¼" superficial. 8. The learned trial court then took into consideration the case of Lakshmi Singh and others Vs. Ramesh, the respondent/accused Shankar was also found to have suffered the following injuries on his person. 1. Oblique contusion on front of chest elongated 3" x ¼" superficial. 2. Elongated contusion on back below left side of scapula obliquely ¾" x ¼" superficial. 8. The learned trial court then took into consideration the case of Lakshmi Singh and others Vs. State of Bihar, ( AIR 1976 SC 2263 ) and found that for the said reason prosecution has suppressed the genesis and origin of the occurrence and thus not presented true version and, therefore, it came to the conclusion that the two witnesses have failed to reveal the whole truth and their evidence is at variance on material points and therefore is unreliable. Another reason given by the learned trial court is that P.W.8 Subhash - the son of the deceased - though claimed that he was assaulted by means of stick, he had not sustained any injuries, and accepted the explanation of the respondent/accused given in his examination under Section 313 of Cr.P.C. as probable that in the scuffle the blow of stick had accidentally fallen on the head of Babulal and at that time the stick was in the hand of P.W.8 Subhash. 9. In our considered opinion, this approach of the learned trial court is totally erroneous. On the other hand, the explanation offered by the respondent/accused in his examination under Section 313 of Cr.P.C. as well as in the cross-examination of these witnesses, what has been tried to bring on record in the evidence by way of defence is that it was P.W.8 Subhash, who wanted to assault the respondent/accused Shankar but the blow landed on decease Babulal. This stand taken by the respondent/accused rather than creating the defence in his favour goes against him and leads to the conclusion that respondent/accused Shankar admits that he had a scuffle with his deceased brother Babulal in which stick was used. In addition to this, it is only one blow which probably missed respondent/accused Shankar and landed on the head of Babulal. But if one sees injuries suffered by deceased Babulal when he was examined by P.W.9 Dr. Ramesh and after his death by P.W.1 Dr. Nalini Shinde, the victim had suffered multiple injuries and it is highly improbable that P.W.8 Subhash has given several blows to his father. 10. But if one sees injuries suffered by deceased Babulal when he was examined by P.W.9 Dr. Ramesh and after his death by P.W.1 Dr. Nalini Shinde, the victim had suffered multiple injuries and it is highly improbable that P.W.8 Subhash has given several blows to his father. 10. The learned trial court was also under a misconception while appreciating the evidence on record, as in its judgment it has observed that the prosecution has miserably failed to prove as to who was the aggressor. Here we may point out that accepting the prosecution case as it is, the offence which is made out against the respondent/accused would fall under exception 4 of Section 300 of IPC and explanation to exception 4 clearly states that it is immaterial in such cases which party offers the provocation or commits the first assault, i.e. to mean: "Explanation to exception 4 directs the attention to the distinction between the present and some of the preceding sections. In many cases of mutual contest, homicide caused by the person who received the first blow or the provocation, would, under those exceptions, have been extenuated; but if that person's death had been caused by his opponent, the offence would not have been within reach of any mitigating provision. The present exception is meant to apply to cases in which, notwithstanding that a blow may have been struck or some provocation given in the origin of the dispute, or in whatsoever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. For there is a mutual combat, and blows on each side; and however slight the first blow or provocation, every fresh blow becomes a fresh provocation. The blood already heated warms at every subsequent stroke, and the voice of reason is heard on neither side in the heat of passion. Under such circumstances, there cannot be much room for discriminating between the respective degrees of blame with reference to the state of things at the commencement of the fray. Sudden fight ensues without premeditation in the heat of passion. When contending factions meet accidentally and attack each other, the conflict results in a sudden fight. Likewise, it may take place because of previous quarrel or incident or in the course of quarrel or incident." 11. Sudden fight ensues without premeditation in the heat of passion. When contending factions meet accidentally and attack each other, the conflict results in a sudden fight. Likewise, it may take place because of previous quarrel or incident or in the course of quarrel or incident." 11. Therefore, in our opinion, we do not find that the prosecution in any respect has suppressed the fact of assault on the respondent/ accused and thereby did not place on record the genesis of the offence. 12. We find that the evidence of P.W.7 Bilobai and P.W.8 Subhash is reliable though it contains bit of exaggeration and improvement but that does not effect the core of their evidence. 13. Therefore, in so far as death of Babulal is concerned, it is respondent/accused Shankar, who is responsible for it and as the incident has taken place in a sudden fight in the heat of passion upon a sudden quarrel and as the weapon used was stick between two brothers, both having suffered injuries, we do not find that the respondent/accused has taken any undue advantage and acted in a cruel and unusual manner and, therefore, the respondent/ accused can be held guilty for having committed offence punishable under Part II of Section 304 of IPC. 14. In so far as charge under Section 324 of IPC is concerned, P.W.7 Bilobai has deposed in her evidence that in what manner she was assaulted by respondent/accused Shankar. There is no reason to disbelieve her, as she stands corroborated by the medical evidence of P.W.9 Dr. Ramesh on record, who has examined Bilobai and found that she suffered following injuries on her person. 1. Elongated contusion and Abrasion at the left hand below the elbow joint 4" x W' superficial. 2. Verticle contusion 6" x ½” superficial at the right side of back. 3. Horizontal contusion on left side of waist laterally 2" x ½” superficial. 4. Elongated contusion at right side of thigh laterally 2" x ½” superficial. 5. Contusion with abrasion at right front of chest horozontal 2" x ½” superficial. 14A. In view of the fact that the injuries are not grievous, we find that there can be no hesitation in convicting the respondent/accused for having committed offence punishable under Section 324 of IPC, as he has caused these injuries with the stick. In the evidence ofP.W.9 Dr. 14A. In view of the fact that the injuries are not grievous, we find that there can be no hesitation in convicting the respondent/accused for having committed offence punishable under Section 324 of IPC, as he has caused these injuries with the stick. In the evidence ofP.W.9 Dr. Ramesh it has come on record that the injuries, which were found on the person of Bilobai and on the basis of which Medical Certificate (Exh.39) has been issued by him, the aforesaid injuries would definitely be caused by Muddemal (Article 7) which is stick. 15. The stick has been seized at the instance of the respondent/accused which also corroborates the prosecution case. 16. Considering the facts and circumstances brought on record by the prosecution, we, therefore, hold that the learned trial court having failed to appreciate the evidence on record has misdirected himself in arriving at a conclusion that the evidence of P.W.7 Bilobai and P.W.5 Subhash are unreliable, in spite of the fact that their presence at the scene of occurrence is not disputed and P.W.7 Bilobai having herself suffered injuries, their evidence could not have been ignored. 17. On the point of sentence, we find that as almost 10 years have passed when the respondent/accused came to be acquitted by the learned trial court and considering the peculiar facts and circumstances in which the incident occurred, resulting in unfortunate death of Baulal and it being in the family, a lenient approach is required to be taken and therefore, we pass the following order. The appeal is allowed. The judgment and order of the trial court acquitting the respondent/accused for offence punishable under Section 302 and 324 of IPC is quashed and set aside. The respondent/accused found guilty of having committed offence under Part II of Section 304 and Section 324 of IPC and he is sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.5,000/-, in default to undergo R.I. for one year for committing offence under Part II of Section 304 of IPC. Further, the respondent/accused is sentenced to undergo R.I. for six months and to pay a fine of Rs.1,000/-, in default to undergo R.I. for six months for having committed offence under Section 324 of IPC. The substantive sentences on both the counts to run concurrently. Further, the respondent/accused is sentenced to undergo R.I. for six months and to pay a fine of Rs.1,000/-, in default to undergo R.I. for six months for having committed offence under Section 324 of IPC. The substantive sentences on both the counts to run concurrently. The respondent would be entitled to benefit of set off under Section 428 of Cr.P.C. In case fine is deposited, the same be paid as compensation to Bilobai P.W.7 in the sum of Rs.5,000/- and Subhash P.W.S in the sum of Rs.1,000/-. The fine be paid on or before 30-11-2005. The respondent/accused has already undergone the period of substantive sentences and if he fails to pay fine as ordered on or before 30th November, 2005, he shall be committed to prison to undergo the sentence in default of payment of fine. The operative part of the order be intimated to the trial court.