JUDGMENT 1. The Sole appellant Subodh Rajwar @ Chutun Rajwar has preferred this appeal against the judgment and order dated 6.5.1996 and 14.5.1996 respectively passed by 1st Additional Sessions Judge, Dumka in Sessions Case No. 154 of 1995/94 of 1995, whereby and whereunder the appellant has been convicted under Sections 302 and 323 of the Indian Penal Code and has been sentenced to undergo RI for life under Section 302 of the Indian Penal Code and undergo RI for one year under Section 323 of the Indian Penal Code. Both the sentences have been ordered to run concurrently. 2. Brief facts leading to this appeal are that in the morning of 22.6.1994 the informant Sunita Rajwarin returned from fields after throwing cow dung to find that her husband Godal Rajwar was being assaulted with lathi by the appellant inside the angan of their house. The appellant is own brother of the deceased, residing in the common ancestral house. According to the informant her husband was asking for share in the house as well as Tali from the appellant and their mother on which this occurrence took place. She alleged that the appellant assaulted the decease with lathi on his head and chest after which he fell down vomiting blood. When she tried to save her husband she was also assaulted by the appellant. She sent the information through his son to village choukidars (PWs 2 and 3) who arrived immediately but in the meantime the appellant fled away. Villagers tried to remove the deceased for his treatment. However, he breathed his last. 3. Raneshwar police was informed which arrived at the place of occurrence and recorded the statement of PW 1 at 13 hours on the basis of which Raneshwar P.S. Case No. 35 of 1994 under Sections 302 and 323 of the Indian Penal Code has been registered. The appellant was charge-sheeted and apprehended. During trial the appellant pleaded innocence. However the learned trial Court, considering the evidence on record found and held him guilty under Sections 302 and 323 of the Indian Penal Code. Accordingly, the appellant was sentenced to serve RI for life under Section 302 of the Indian Penal Code and RI for one year under Section 323 of the Indian Penal Code. 4. However the learned trial Court, considering the evidence on record found and held him guilty under Sections 302 and 323 of the Indian Penal Code. Accordingly, the appellant was sentenced to serve RI for life under Section 302 of the Indian Penal Code and RI for one year under Section 323 of the Indian Penal Code. 4. The present appeal has been preferred mainly on the grounds that the learned trial Court has convicted the appellant on the basis of sole eye-witness which is not safe. According to learned amicus curiae Sri Kumar Vimal appearing for the appellant. PWs 2 and 3 village choukidars have been believed as corroborating witnesses to the occurrence. However they have admitted during cross-examination that they arrived at the place of occurrence having received information from a boy whose name they could not disclose. It was further pointed out that even when they saw appellant fleeing away from the place of occurrence they did not make any effort to arrest him. Learned AC further pointed out that police recorded the SD entry No. 297 dated 22.6.1994 which has not been brought on record, thus concealed the actual information received by the police. He further submitted that no alarm was raised by PW 1 during the occurrence nor the lathi was produced before the trial Court. As such, the learned trial Court should not have believed the eye-witness particularly in the circumstances where dispute was going on between the appellant and the deceased for family properties. 5. We have gone through the materials on record to appreciate the submission made by the learned amicus curiae. Undisputedly the appellant and the deceased were residing in the same angan. The appellant has not denied that there was any dispute regarding the house and Tali as claimed by the prosecution. He has been examined under Section 313, Cr PC by the trial Court in which he has denied the occurrence. He has taken plea that the deceased was suffering from tuberculosis and he died because of sudden fall. However this plea is contradicted by the postmortem report (Ext. 1) proved by PW 7 who found ante mortem injuries on the body of Godal Rajwar diffuse swelling over the left side of fore head with fracture of left parietal bone. He has taken plea that the deceased was suffering from tuberculosis and he died because of sudden fall. However this plea is contradicted by the postmortem report (Ext. 1) proved by PW 7 who found ante mortem injuries on the body of Godal Rajwar diffuse swelling over the left side of fore head with fracture of left parietal bone. He found diffuse swelling over the both side of lower chest with fracture of 7th ribs of both side which resulted in damages to pleura and lungs etc. In his opinion the injuries were caused by hard and blunt substance. The prosecution version that the appellant was assaulting the deceased with lathi, therefore has been proved beyond doubts. 6. Even if we accept the submissions of learned amicus curiae that on the basis of sole witness of the occurrence the trial Court should have ascertained the correctness, we find PWs 2 and 3 village choukidars who arrived at the place of occurrence immediately afterwards has supported her. PW 4 was declared hostile, PWs 5 and 6 has been tendered. PW 10 Dr. Ajit Kumar has examined the informant on same day and found injuries on her person as claimed by PW 1 on the left thigh, right shoulder etc. The defence has not brought on record the statement of the mother of the deceased and the appellant which should have proved his innocence. Therefore, we do not find any ground to accept the submission of learned amicus curiae that the conviction of the appellant on the basis of sole eye-witness deserve to be aside. 7. However, while going through the materials on record, we find that the occurrence took place due to family difference regarding the share to the deceased and appellant in family properties. The appellant was at about 26 years of age at the time of the occurrence. Apparently the incident took place due to sudden quarrel resulting in heat of passion in which the appellant assaulted the deceased. Unfortunately the deceased could not survive and breathed his last. As such, we are of the considered view that the offence committed by the appellant is covered under the Exceptions of Section 304 Part-II of the Indian Penal Code. The circumstances show that the appellant has not preplanned to cause death, we find that the appellant should have been convicted under Section 304 Part-II of the Indian Penal Code. 8. As such, we are of the considered view that the offence committed by the appellant is covered under the Exceptions of Section 304 Part-II of the Indian Penal Code. The circumstances show that the appellant has not preplanned to cause death, we find that the appellant should have been convicted under Section 304 Part-II of the Indian Penal Code. 8. Considering the facts and circumstances of the case the conviction of the appellant under Section 302 of the Indian Penal Code is set aside and converted under Section 304 Part II of the Indian Penal code. The sentence is modified to the period already undergone by the appellant in custody. In the result this appeal is dismissed with modification in sentence to the period already undergone by the appellant in the custody. Since the appellant is in custody since 28.4.1995, he is directed to be released forthwith, if not wanted in any other case.