JUDGMENT Hon’ble Vineet Saran, J.—This appeal arises out of judgment dated 21.1.1994 passed by the Special Judge/Additional Sessions Judge, Azamgarh in S.T. No. 294 of 1991, State v. Dhoopnath Pandey by which the appellant-accused has been convicted under Section 302, IPC and sentenced to imprisonment for life. 2. The prosecution case in brief is that the deceased Ram Suresh Pandey was done to death by his brother Dhoopnath Pandey (appellant herein) on 9.8.1991 at about 6 p.m. The F.I.R. was lodged by Smt. Shakuntala, the wife of the deceased Ram Suresh Pandey, on the same day at 7.30 p.m. with the allegation that her husband (deceased- Ram Suresh Pandey) and the appellant Dhoopnath Pandey, who were both real brothers, were engaged in wordy duel on family matters with regard to a dispute about distribution of land and house. Such dispute is said to have been going on for about four years. The oral altercation between the brothers took place in presence of the father of the deceased (as well as of the appellant) and certain other persons. It is said that because of intervention of the witnesses, the quarrel stopped temporarily. As the appellant continued to call names, the two brothers again started fighting and the appellant Dhoopnath Pandey then went to his room and brought a Gandasa and struck it on the head of the deceased Ram Suresh Pandey with intention to commit murder. The said Ram Suresh Pandey fell down on the ground and died on the spot without getting any medical help. On the basis of such complaint, a case under Section 302, IPC was registered against the appellant. After investigation, a charge-sheet was filed by the Police. Since the appellant denied the charges and pleaded innocence, he was put to trial. 3. During trial, besides other formal witnesses the prosecution examined the informant, Smt. Shakuntala as P.W.1, the father of the deceased (as well as the appellant) Sri Laxmi Das as P.W. 2 and another eye witness Ram Pujan Verma as P.W.8. In his statement under Section 313, Cr.P.C. the appellant had denied the prosecution case and stated that he had been falsely implicated. However, he did not produce any evidence in defence. Relying on the oral testimony of the eye witnesses as well as the medical evidence adduced by the prosecution, the trial Court convicted the appellant and sentenced him to imprisonment for life. However, he did not produce any evidence in defence. Relying on the oral testimony of the eye witnesses as well as the medical evidence adduced by the prosecution, the trial Court convicted the appellant and sentenced him to imprisonment for life. Challenging the said judgment, this appeal has been filed. 4. We have heard Sri Sudist, learned counsel for the appellant as well as Sri R.K.Singh, learned Additional Government Advocate, appearing for the State and have perused the record. 5. Sri Sudist has not been able to place any material to show that the incident had not taken place in which because of the blow of Gandasa given by the appellant, the deceased Ram Suresh Pandey died. He has, however, stated that the incident had taken place because of sudden provocation as the two brothers were fighting with each other because of certain disputes and as such the case would be covered by Exception 4 to Section 300, IPC as the act of the appellant was without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and without having taken undue advantage or acted in a cruel or unusual manner. In support of his submission, he has relied upon the decision of the Apex Court in the case of Gali Venkataiah v. State of Andhra Pradesh, 2008 (1) JIC 276 (SC) wherein in similar facts, where the appellant and the deceased were also brothers and the stab wound was inflicted in a sudden quarrel, it was held that the parties being close relatives and the occurrence having taken place all of a sudden, the offence would be covered under Section 304 Part I IPC. The Apex Court, in such circumstances and in the interest of justice awarded custodial sentence of ten years. 6. In our view, in the present case also the incident took place because of sudden provocation which was due to fight between the brothers because of certain disputes and cannot be said that the act was committed with premeditation mind. As such, in our view, the ratio of the aforesaid judgment would be applicable in the present case. 7. 6. In our view, in the present case also the incident took place because of sudden provocation which was due to fight between the brothers because of certain disputes and cannot be said that the act was committed with premeditation mind. As such, in our view, the ratio of the aforesaid judgment would be applicable in the present case. 7. For the reasons given hereinabove and considering the facts and circumstances, we are of the view that the case against the appellant would not be covered under Section 302, IPC and the conviction under Section 304 Part I IPC would be just and proper. 8. As such the conviction and sentence recorded against the appellant under Section 302, IPC is set aside and the same is reduced to one under Section 304 Part I IPC. The appellant has been in jail for more than 18 years and as such it would meet the ends of justice that he be sentenced to the period already undergone in jail. 9. Appeal stands allowed to the extent indicated above. 10. The office is directed to certify the judgment/record to the Court concerned for compliance and necessary action. ————