JUDGMENT : SHYAM KISHORE SHARMA The sole accused-appellant Musafir Mahto has appealed against the judgment of conviction and order of sentence dated 19.07.2005 of the learned Additional Sessions Judge, F.T.C.IV, Nawada in Sessions Trial Case No.112/1992/223/2004 whereby the appellant has been convicted under Section 302 of the I.P.C. and has been sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- and in default of fine, simple imprisonment for one year. 2. On 1.04.1992 at 8.00 A.M. Sahdeo Mahto (deceased), husband of Chinta Devi (informant- P.W.7) was fatally injured by his own brother Musafir Mahto (appellant) on account of quarrel amongst the ladies of the house. The informant’s husband wanted unity in the family, but it was not being liked by other co-parcener. In course of scuffle, the appellant gave a hand pumps handle blow upon the head of Sahdeo Mahto, who received injuries. On cry of informant P.W.7, neighbour Badri Mahto (not examined), Shankar Mahto (P.W.2), Suresh Singh (P.W.3), Tilak Mahto (P.W.1) and others came there and saw the occurrence. The Fardbeyan (Ext.4) was recorded in the village which resulted into formal FIR (Ext.3) of Rajauli P.S. Case No.47 of 1992 dated 1.04.1992 under Section 302 of the I.P.C. against the sole accused/appellant. The FIR/ G.R. No.410/92 was investigated into. In course of investigation, inquest report (Ext.5) was prepared. The post-mortem examination report (Ext.2) was obtained. Seizure (Ext.1) was made. In view of transfer of the Investigating Officer, another Investigating Officer joined and his investigation (Para 34-52 Ext.6) came on the record, but only one I.O. was examined. After investigation, charge-sheet was submitted. The cognizance was taken and the case was committed to the Court of Sessions where the charge under Section 302 of the I.P.C. was explained to the accused and when he pleaded innocence, the trial proceeded. 3. In course of trial, the prosecution has examined ten witnesses: P.W.1 Tilak Mahto, P.W.2 Shankar Mahto, P.W.3 Suresh Singh, P.W.4 Raj Kumar Singh, P.W.5 Dwarika Singh, P.W.6 Birendra Prasad, P.W.7 Chinta Devi, P.W.8 Dr. Bisheshwar Ram, P.W.9 Shivnarayan Prasad and P.W.10 Sahdeo Yadav. The defence has examined two witnesses: - D.W.1 Chameli Devi and D.W.2 Moti Mahto. 4. 3. In course of trial, the prosecution has examined ten witnesses: P.W.1 Tilak Mahto, P.W.2 Shankar Mahto, P.W.3 Suresh Singh, P.W.4 Raj Kumar Singh, P.W.5 Dwarika Singh, P.W.6 Birendra Prasad, P.W.7 Chinta Devi, P.W.8 Dr. Bisheshwar Ram, P.W.9 Shivnarayan Prasad and P.W.10 Sahdeo Yadav. The defence has examined two witnesses: - D.W.1 Chameli Devi and D.W.2 Moti Mahto. 4. P.Ws.1, 2, 3, 4, 5 and 6 have not at all stated anything about the occurrence and they have expressed complete ignorance, so they have been declared hostile and on the prayer of the prosecution, they were allowed to cross-examine in which they declined the suggestion of the prosecution of making any statement under Section 161 Cr.P.C. before the police. P.W.9 is a formal witness who has proved the pen and signature of P.W.10 on the formal FIR (Ext.3). The only material witness of the case remained the informant Chinta Devi, who lost her husband in the occurrence. Her evidence is being dealt with. 5. While deposing in the court, P.W.7 Chinta Devi has stated that she was having some altercation with her Gotani in the morning. Both were separately cooking since last three days that was bone of contention between two. The informant’s husband was insisting for jointness. When P.W.7 went to prepare tea, then it was disturbed by her Gotani Kumari Devi. This resulted into altercation between two brothers i.e. the accused and the deceased. The appellant opened the handle of hand pump and strike it upon the head of deceased, who fell down and died. On cry of the informant, some persons came and witnessed the occurrence. Thereafter, she went to the police station, where Fardbeyan was recorded and she put her thump impression thereupon. 6. The Investigating Officer has stated that he went to the place of occurrence and recorded fardbeyan of Chinta Devi there and investigation started immediately thereafter. His evidence is that fardbeyan was recorded in the P.O. village and not at the police station. He claims to have seized the handle of tube well, but he has not mentioned in the case diary. It is surprisingly as to how he stated his fact that he has seized the handle of the tube well. The alleged handle of the tube well has been used as a weapon in the present case and oral evidence has suggested that it was seized. It is surprisingly as to how he stated his fact that he has seized the handle of the tube well. The alleged handle of the tube well has been used as a weapon in the present case and oral evidence has suggested that it was seized. The corresponding entry must have been made in the case diary, but I.O. declines it. It can be safely inferred that in fact the handle was not seized. The handle was not brought before the court. 7. The Doctor holding the post-mortem examination on the dead body of Sahdeo Mahto has stated that the post-mortem examination was performed on 1.04.1992 i.e. the date of occurrence itself and the doctor has found corresponding injury. The death was within 6 to 36 hours. The time of death and manner of death as stated by the informant has been supported by the doctor. 8. There is solitary witness to support the prosecution case and the other witnesses relied upon her having come to support her rather they have stated that they were not at all in the knowledge of the occurrence. This fact is perceived because it has come in the evidence that the deceased was four brothers. It was natural for other brothers to take side from the living brothers with whom they had been passed rest of the life. Therefore, their non-supporting the informant’s version will be conceived and understood in a case based upon solitary evidence. It has to be looked into as to whether the witness is in fact important or not. If the solitary witness is fractured then it cannot be accepted. No doubt, there is minor contradiction with the place of recording of fardbeyan because P.W.7 in para 2 deposed that her fardbeyan was recorded at the police station, whereas P.W.10 in para 13 confronted and has stated that fardbeyan was in the house of informant, but the informant has stated that she has claimed to be an illiterate lady. Her mental condition, who has lost her husband can be understood and it can be said that such variation in the fact as she was illiterate and has been widowed could be well understood. 9. No doubt, the case based on the testimony of sole witness, but her testimony has been supported by the doctor, who held post-mortem examination. Her mental condition, who has lost her husband can be understood and it can be said that such variation in the fact as she was illiterate and has been widowed could be well understood. 9. No doubt, the case based on the testimony of sole witness, but her testimony has been supported by the doctor, who held post-mortem examination. Even the defence version is that deceased died on account of scuffle; therefore, manner of assault described by the sole witness can be understood and accepted. There is no infirmity in the version of the informant so far as it relates to assault upon her husband by the appellant. Therefore, the evidence that on the date and time of occurrence the appellant attacked upon the head of the deceased after taking out handle of tube well has been established. So, considering the evidence on record and it can be said that the offence committed was culpable homicide not amounting to murder. 10. In the present case, it has come in the evidence that culpable homicide was committed when the accused/ appellant was deprived of the power of self control in course of some scuffle. The act was neither intended nor the accused was in knowledge that such a simple act ultimately proved fatal. Therefore, it cannot be safely said that the accused was intending to cause death or was having knowledge that if such act was caused death and for that his punishment under Section 302 of the I.P.C. can be said to be excessive. 11. So far as the charge is concerned, it can be said that it has been proved that the Sahdeo Mahto was killed on account of use of handle of tube well, but such an act cannot be said to be intention of appellant to cause death or he might having knowledge that such act would result into death. 12. Considering the facts and circumstances of the case, the judgment and order under appeal is modified to the extent that the order of conviction is altered to Section 304 Part II of the I.P.C. The appellant has remained in custody for more than eight years. So, it is held that the period already undergone in custody by the appellant is sufficient to meet the ends of justice. 13. So, it is held that the period already undergone in custody by the appellant is sufficient to meet the ends of justice. 13. In the result, the appeal is dismissed with the aforesaid modification in the judgment of conviction and order of sentence. The appellant is directed to be released forthwith, if not wanted in any other case.