JUDGMENT : RAKESH SAKSENA, J. Appellant has filed this appeal against the judgment dated 11-11-2005 passed by IV Additional Sessions Judge, Sagar in Sessions Trial No. 57/2003 convicting the appellant under section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 100/-. In default of payment of fine, further rigorous imprisonment for one year. 2. In short, the prosecution case is that on 12-7-2002 in village Chapri near the well of Choudhary, there had been a Daal-bati feast. Along with other persons of village, Babulal (PW-1) and his son Sukhdev had also participated in the feast. In the evening at about 6:00 p.m. when they were going back, they happened to pass from front of the tea shop of accused Devi Singh. Sukhdev (PW-2) stopped at the shop of Devi Singh and admonished him for not intimating the sale of haystack by Narad Singh. Devi Singh getting annoyed, abused him and told that he was not anybody's servant. When Babulal (PW-1) intervened and asked Devi Singh not to abuse, there occurred a hot altercation. Hearing commotion, Babulal's son Charli @ Rajendra Singh reached there and asked Sukhdev to go from there. In the meanwhile, Devi Singh raised a call hearing which four other accused persons viz. Kalyan, Narayan Singh, Dharmendra and Arvind also reached there armed with Katarna, tabbal, sword and lathi. Devi Singh picked up Katarna from a shop and dealt its blow on the head of Charli. Appellant shouting that he will deal with him, dealt one blow of tabbal on the neck of Charli which hit him in the left side of neck under the left ear. Blood oozed out and Charli fell on the ground. Indraj Singh (PW-3), Ramgopal (PW-4), Meghraj @ Paltu (PW-5) and Veer Singh (PW-6) reached there and intervened whereupon accused persons ran away. In the tractor of Indraj, Charli Singh was taken to district hospital, Sagar where in the night at about 2.05 O'clock he died. Babulal (PW-1) after leaving the dead body in Sagar hospital, went to police station Banda and lodged first information report Ex.P/1 on 13-7-2002 at 10:20 a.m. 3. The intimation about the death of Charli was sent by Dr. R. K. Dixit (PW-9) to police station, Gopalganj whereupon marg intimation Ex.P/39 was recorded. Dead body of Charli was referred for post-mortem examination. Dr. The intimation about the death of Charli was sent by Dr. R. K. Dixit (PW-9) to police station, Gopalganj whereupon marg intimation Ex.P/39 was recorded. Dead body of Charli was referred for post-mortem examination. Dr. Ganesh Prasad Nema (PW-8) of district hospital, Sagar conducted post-mortem and found one stitched injury on the neck of deceased vide his report Ex.P/31. 4. During investigation, accused were arrested and weapons were seized on their information. After completion of investigation, charge-sheet was filed against six accused persons in the Court of Judicial Magistrate First Class, Banda who in his turn committed the case to the Court of Sessions. When charges were framed under sections 148, 302/149 and 302 of the Indian Penal Code, all the accused abjured their guilt and pleaded that deceased and his family members had entered their house and assaulted them. When they tried to kill accused Mangna by pressing his neck, stones were pelted from both the sides. Deceased attempted to assault Mangna with tabbal but in an attempt to snatch it, tabbal hit deceased. 5. After appreciation of evidence and upon trial, learned Trial Judge found the prosecution evidence insufficient against accused Kalyan, Narayan, Dharmendra and Arvind to establish any charge and acquitted them. He convicted accused Devi Singh under section 324 read with section 110 of the Indian Penal Code, and holding the appellant guilty under section 302 of the Indian Penal Code, convicted and sentenced him as mentioned above. 6. Learned counsel for the appellant submitted that the evidence of eyewitnesses adduced by the prosecution was unreliable. Learned Trial Judge misappreciated the evidence on record though most of the eyewitnesses were closely related to deceased. Injuries were found on the body of accused Devi Singh and Dharmendra, but learned Trial Judge erred in holding that deceased and his brother were aggressors. In the alternative, learned counsel for the appellant submitted that it was not established from the record that appellant intended to commit murder of deceased since the incident had occurred suddenly when deceased's brother viz. Sukhdev indulged in quarrel with accused Devi Singh. It was a case of sudden quarrel in which deceased received only one injury which proved fatal. In the alternative, learned counsel for the appellant submitted that it was not established from the record that appellant intended to commit murder of deceased since the incident had occurred suddenly when deceased's brother viz. Sukhdev indulged in quarrel with accused Devi Singh. It was a case of sudden quarrel in which deceased received only one injury which proved fatal. According to him, in these circumstances, the conviction of appellant under section 302, Indian Penal Code was not justified, at the most, he could have been held liable under section 304 Part I or Part II of Indian Penal Code. Appellant was continuously in jail since 23-7-2002. On the other hand, learned counsel for the State supported the impugned judgment of conviction of appellant and submitted that from the evidence adduced by the prosecution, it was established that appellant assaulted deceased with a sharp edged weapon on his neck, therefore, his conviction under section 302, Indian Penal Code was just and proper. 7. We have heard the learned counsel for the parties, perused the impugned judgment and the evidence on record carefully. 8. It is not disputed that deceased died a homicidal death. Babulal (PW-1) and Sukhdev (PW-2), respectively the father and brother of deceased, stated that on 12-7-2002, accused Devi Singh and Mangna assaulted deceased with Katarna and tabbal. Deceased suffered an injury on his neck below the ear. They carried deceased to Tili hospital, Sagar but in the night at about 2:00 O'clock he died. Babulal (PW-1) then went to police station Banda and lodged first information report Ex.P/1. 9. Dr. R. K. Dixit (PW-9), Medical Officer of district hospital, Sagar examined the injuries of deceased and found one incised wound 15 cm x 4 cm x muscle deep on the left side of his neck. It was bleeding. He admitted deceased in the hospital and referred him to surgical specialist of ENT department. He recorded the injuries of deceased on bed-head ticket Ex.P/34. When deceased expired he recorded his death in Ex.P/34 and sent intimation Ex.P/36 to station officer of police station Gopalganj.Head Constable Ravi Shankar Sen (PW-13) recorded marg Ex.P/38 at police station Banda. Dr. He admitted deceased in the hospital and referred him to surgical specialist of ENT department. He recorded the injuries of deceased on bed-head ticket Ex.P/34. When deceased expired he recorded his death in Ex.P/34 and sent intimation Ex.P/36 to station officer of police station Gopalganj.Head Constable Ravi Shankar Sen (PW-13) recorded marg Ex.P/38 at police station Banda. Dr. Ganesh Prasad Nema (PW-8) of district hospital, Sagar conducted autopsy of the body of deceased and found :- Stitched wound on the left side of neck on postero lateral part behind the left ear measuring 9 cm x 3.5 cm x 5 cm. On opening the wound, he found muscle tissues and blood vessels including left jugular and carotid artery cut. No other injury was found on the body. In the opinion of doctor, the aforesaid injury was caused by heavy sharp edged weapon within 24 hours. The death of deceased was caused by haemorrhagic shock due to excessive bleeding. The injury was sufficient to cause death in the ordinary course of nature. He also deposed that on a query Ex.P/32 he opined that the said injury could have been caused by tabbal sent to him for examination. From the above evidence, in our opinion, it has been established beyond doubt that deceased died a homicidal death. 10. Now the question before us is whether appellant caused fatal injury to deceased? 11. It is true that eyewitnesses Babulal (PW-1) and Sukhdev (PW-2) are father and brother of deceased, but their evidence cannot be discarded merely on the ground of their close relationship with the deceased. It is, however, essential that their evidence should be examined with caution and circumspection. 12. Babulal (PW1) deposed that after the feast at about 5:30 O'clock in the evening while he was going back along with his son Sukhdev, he happened to pass from front of the hotel of accused Devi, Sukhdev asked Devi as to why he did not give information about the sale of haystack by Narad Singh. Devi got enraged and after abusing Sukhdev retorted that he was not his servant. When he intervened and tried to pacify both of them, Devi hurled abuses. At that time, his younger son Charli Singh also reached there and asked Sukhdev to go home, but Devi shouted to call his family members. All the accused persons including appellant reached there armed with sword, tabbal, Katarna and lathi. When he intervened and tried to pacify both of them, Devi hurled abuses. At that time, his younger son Charli Singh also reached there and asked Sukhdev to go home, but Devi shouted to call his family members. All the accused persons including appellant reached there armed with sword, tabbal, Katarna and lathi. Devi dealt a blow of Katarna on the head of Charli and appellant assaulted him with tabbal on his neck. After receiving injury by tabbal, Charli Singh fell down. When other people of village reached there, accused persons ran away. Charli was taken to hospital at Sagar where he died in the night. He lodged first information report of the occurrence (Ex.P/1) at police station, Banda. Similar statement was given by Sukhdev (PW-2), Indraj Singh (PW-3), Ramgopal (PW-4), Meghraj @ Paltu (PW-5) and Veer Singh (PW-6). Despite a lengthy cross-examination, all the aforesaid eyewitnesses remained firm on the fact that appellant dealt a blow of tabbal on the neck of deceased as a result of which he fell down. It was suggested to the witnesses that Babulal, Sukhdev and other persons attacked Devi Singh, Kalyan and Dharmendra, but they denied. They also denied that accused persons received any injury in the said incident. 13. It is true that Dr. R. S. Bhojak (PW-7), Medical Officer stated that accused Devi Singh and Dharmendra were brought to Community Health Centre, Banda for examination of their injuries, but he found no external injury on the body of Devi Singh. Devi Singh merely complained about pain in his knee. He further found an old healed abrasion mark on the chest of accused Dharmendra which was simple in nature. Medical reports of Devi Singh and Dharmendra were recorded by him in Ex.P/29 and Ex.P/30. It is important to note that the injuries of aforesaid accused persons were examined by doctor on 25-7-2002 whereas the incident had occurred on 12-7-2002. Though abrasion found on the body of Dharmendra was about two weeks old but looking to the nature of his injury, it cannot be held that he received the said injury at the hand of deceased or members of the complainant party. Non-explanation of such injury by the prosecution witnesses cannot render their testimony suspicious or doubtful. Though abrasion found on the body of Dharmendra was about two weeks old but looking to the nature of his injury, it cannot be held that he received the said injury at the hand of deceased or members of the complainant party. Non-explanation of such injury by the prosecution witnesses cannot render their testimony suspicious or doubtful. It is further important to note that no report was lodged by anybody from the side of accused persons to indicate that deceased and the members of his family were aggressors. 14. Evidence of Babulal (PW-1) finds support from the first information report Ex.P/1 lodged by him on 13-7-2002 at police station Banda wherein he clearly mentioned appellant assaulted deceased on his neck with a tabbal.The fact that deceased received injury by sharp edged weapon on the neck was further proved by the evidence of Dr. R. K. Dixit and Dr. Ganesh Prasad Mishra (PW-8), who respectively conducted medical examination and post-mortem examination of the body of deceased. 15. After a careful scrutiny of the evidence of eyewitnesses viz. Babulal, Sukhdev, Indraj, Ramgopal, Meghraj and Veer Singh, we find that they are reliable witnesses and by their evidence, it has been established beyond doubt that appellant assaulted deceased with a tabbal and caused an injury on his neck as a result of which he died. The finding recorded by the trial Court in this regard is just and proper and calls for no interference. 16. Now the next question before us is whether the conviction of appellant under section 302, Indian Penal Code, in the circumstances of the case, is justified? 17. Learned counsel for the appellant contended that there is no evidence on record to indicate that there was any motive on the part of appellant to commit murder of deceased. There was no past enmity between them. It was just a spur of the moment affair under which a sudden quarrel occurred in which appellant dealt only one blow of tabbal to deceased which by chance landed on his neck. Babulal (PW-1) and Sukhdev (PW-2) admitted that there was no past enmity or ill-will between them and the accused persons. Admittedly, the quarrel had begun between Sukhdev and accused Devi Singh when Sukhdev remonstrated Devi Singh for not informing him about the sale of haystack by Narad Singh. Babulal (PW-1) and Sukhdev (PW-2) admitted that there was no past enmity or ill-will between them and the accused persons. Admittedly, the quarrel had begun between Sukhdev and accused Devi Singh when Sukhdev remonstrated Devi Singh for not informing him about the sale of haystack by Narad Singh. Deceased by chance reached there and tried to intervene in the quarrel whereupon he was assaulted by the appellant. Though it has been stated by the eyewitnesses that accused Devi Singh dealt a blow with Katarna on the head of deceased, but no such injury was found on the head of deceased. Appellant was not present at the scene of occurrence from the beginning. He had come at the place of occurrence hearing the call raised by Devi Singh. Veer Singh (PW-6) stated that appellant picked up tabbal and assaulted deceased in the quarrel. 18. On a close scrutiny of the evidence in respect of the above circumstances, it seems that the incident had occurred in a sudden quarrel when deceased came and intervened, and appellant who was not present at the beginning of the dispute suddenly reached and assaulted deceased with tabbal. In these circumstances, it can only be held established with certainty that he caused injury to deceased with the intention of causing his death or of causing such bodily injury to him as was likely to cause his death, punishable under section 304 Part I of the Indian Penal Code. 19. In view of the above discussion, conviction of appellant under section 302, Indian Penal Code is modified to one under section 304 Part I of the Indian Penal Code and he is sentenced to rigorous imprisonment for ten years. Appellant is said to be in jail since 23-7-2002. If he has served out the sentence awarded to him, he shall be released forthwith, if not required in any other case. 20. Appeal partly allowed.