Judgment : Nishita Mhatre, J. 1. The appellant has been convicted under Section 302 of the IPC sentenced to suffer imprisonment for life with a fine of Rs.5000/-(Rupees five thousand only) and in default of payment of fine to suffer imprisonment for one year more by the Additional District and Sessions Judge, Fast Track Court, Alipurduar, by his judgment and order dated 22nd March, 2004. 2. A quarrel between two brothers has resulted in one of them dying. He was stabbed by the other brother with a knife. The case of the prosecution is based mainly on three witnesses, namely, the wife of the deceased and their two sons who are all eye-witnesses to the incident. Two brothers of the deceased who were examined as PWs 5 and 6 have been declared hostile. A neighbour, examined as PW 4, is not an eyewitness. 3. The Judgment under appeal has been criticized by the learned Counsel for the appellant by pointing out that the FIR was lodged after a delay of more than 24 hours. He further pointed out that the FIR did not mention that there was a quarrel between the appellant and the deceased, which led to the stabbing of the deceased. The learned Counsel has also drawn our attention to the fact that though the sons of the deceased have been examined as eye-witnesses as PWs 2 and 3, their presence has not been mentioned in the FIR. The learned Counsel has also submitted that the evidence on record indicates that there was a sudden breaking of windows and doors and the FIR does not indicate that such things had occurred. Learned Counsel, therefore, has submitted that the entire case of the prosecution is based on witnesses who were related to the deceased and, therefore, their evidence ought not to be believed. Another major lacuna, according to the learned Counsel in the prosecution case, is that the weapon of assault has not been seized. 4. PW 1, who is the wife of the deceased, has spoken about all the brothers of her husband living in the same house but in a separate mess and in their separate allotments. In her deposition she has stated that the incident occurred on 26th February, 2003 in the afternoon at about 4:30 P.M. According to her at about 3 P.M. on that day the appellant started abusing the deceased and his family. In her deposition she has stated that the incident occurred on 26th February, 2003 in the afternoon at about 4:30 P.M. According to her at about 3 P.M. on that day the appellant started abusing the deceased and his family. He broke the kitchen room of the deceased. While this was happening, the deceased was standing in the courtyard of the house with his two sons Raju and Sushil. The appellant went to the courtyard and again abused the deceased. The deceased then rebuffed those abuses. The appellant caught hold of his collar and kicked him in the belly. PW 1 claimed that she took her husband inside their bedroom. The appellant’s wife similarly took away the appellant to their bedroom. The appellant then came out of the room through the window and broke open the door and entered the bedroom of the deceased. He stabbed the deceased in his chest and his belly in the presence of PW 1. According to this witness after the appellant was stabbed he fell on the road. She has stated that the appellant also attacked Raju, the younger son who came forward to save his father. The deceased was taken to the hospital where he was declared dead by the doctor on duty. PW 1 has stated that she lodged a complaint with the Police Station which was scribed by PW 9. In her cross-examination she has admitted that the contents of the complaint were not read over to her after it was written. The witness has also admitted that she went and lodged the complaint about 10 A.M. the next day. Certain statements which find no mention in the complaint have been brought on record through the deposition of PW 1, such as there being a property dispute between the appellant and his brothers, the uttering of filthy abuses by the appellant against the deceased and his family. The breaking of the kitchen of the deceased was not mentioned in the FIR though the witness has mentioned this fact in her deposition. PW 1 has also stated that despite having told the scribe that her husband was standing in the courtyard along with their sons, this fact was not included in the FIR. According to this witness, the cover of the knife was seized by the police though the knife could not be found. 5. PW 1 has also stated that despite having told the scribe that her husband was standing in the courtyard along with their sons, this fact was not included in the FIR. According to this witness, the cover of the knife was seized by the police though the knife could not be found. 5. Petitioner 2 Raju is the son of PW 1 and the deceased. He has essentially corroborated the statements made by his mother in her testimony. He has also stated that he was assaulted by the appellant. In his cross-examination he has admitted he did not consult a doctor for that injury because it was merely an abrasion. The witness has admitted that the police did not seize any of the broken articles of the kitchen. 6. Petitioner 3 who is another son of the deceased and PW 1 has also corroborated the testimony of PW 1 and 2. He has stated additionally that while he, his mother and brother tried to save his father that is the deceased, his brother was assaulted. They were chased by the accused. PW 4, a neighbour of the deceased, learnt about this incident from other neighbours. He has admitted he had not seen the incident. 7. PWs 5 and 6 are brothers of the deceased and the appellant. Both of them were not present when the incident occurred. They returned home a little while after the incident when they saw many people had assembled in front of the house. Both the witnesses have stated that after the assault they shifted the deceased to the hospital. PW 6 has stated that he heard that the local people had assaulted both the appellant as well as the deceased. These witnesses have been declared hostile. It is apparent from the testimonies that they did not want to implicate the appellant and, therefore, have stated that local people assaulted both the appellant and the deceased. 8. PW 7 is the autopsy surgeon who conducted the post-mortem examination of the deceased. He has narrated that on examination it was found that the deceased was inflicted with the following injuries: “(1) one sharp cutting penetrating deep injury on right side of chest, causing injury lung with its vessels resulting in haemothorax. 8. PW 7 is the autopsy surgeon who conducted the post-mortem examination of the deceased. He has narrated that on examination it was found that the deceased was inflicted with the following injuries: “(1) one sharp cutting penetrating deep injury on right side of chest, causing injury lung with its vessels resulting in haemothorax. (2) one sharp cut penetrating deep injury over lower abdomen on left sight side causing injury of the mesentric vessels with profuse haeomoperitomeny.” The doctor has opined that the cause of death was haemmorrage and shock resulting from the sharp cut deep injuries which were ante mortem in nature and homicidal. The doctor has also stated that such injuries could be caused by a long sharp cutting weapon like a knife or a dagger. This witness has admitted that he had not measured the dimensions of the injuries and, therefore, there was no indication in that respect in the Post-mortem Report. 9. PW 8 took the dead body to the PW 7 for the autopsy to be conducted. 10. PW 9 is the scribe of the complaint. He has stated that he wrote the complaint while sitting in the police station. He has admitted that he did not read over the contents of the complaint to PW 1. This witness has stated that he was not examined by the Investigating Officer. 11. PW 10 is the Investigating Officer. He has produced the inquest report and the sketch map. He has named the persons he had examined under Section 161 Cr.P.C. who included the present witnesses. According to the Investigating Officer PW 5 informed him that there was a dispute about the property between the appellant and the deceased and that the appellant had assaulted the deceased with a sharp edged weapon. He has also spoken about PW 6 stating before him about the dispute between the two brothers and the appellant striking the deceased with a sharp cutting weapon which resulted in his death. 12. Two witnesses, namely, the mother of the deceased and the wife of the appellant have been examined to support the appellant’s defence. DW 1 has stated that there was a quarrel between the appellant and the deceased but she was unable to say who assaulted the deceased. She has admitted that there was a dispute between the brothers about a boundary. DW 1 has stated that there was a quarrel between the appellant and the deceased but she was unable to say who assaulted the deceased. She has admitted that there was a dispute between the brothers about a boundary. DW 2 the wife of the appellant has stated that the deceased assaulted her husband with a wooden buttam on his head and belly. She claims that her husband had become unconscious with a bleeding injury on his head and was treated in a hospital for his injuries. 13. From the evidence on record it is apparent that there was quarrel between the appellant and the deceased over a property. It is also evident that the appellant stabbed the deceased in his belly as well as in his chest. However, the investigation in this case has been perfunctory. The knife which was allegedly used to stab the deceased has not been seized by the Investigating Officer. The doctor who conducted the post mortem has not measured the size of the injuries inflicted on the deceased. No independent witnesses have been examined. Despite all these lacunae, in our opinion, having regard to the evidence on record there can be no doubt that the appellant did stab the deceased. The learned Counsel for the State has submitted that the very fact that there were disputes between the brothers indicated that the appellant had the mens rea to eliminate the deceased to gain the property for himself. He, therefore, submitted that once the mens rea has been established against the appellant this Court should be slow to set aside the judgment and order passed by the Trial Court. 14. It is true that no independent witnesses have been examined in this case but that would not in any manner dilute the case of the prosecution. Three prosecution witnesses, though related to both the victim and the assailant, have stated that there was a quarrel between the two brothers and the deceased was stabbed with a knife by the appellant. The defence witnesses have also spoken about a quarrel between the brothers. However, they have stated that it was the deceased who assaulted and that the appellant received injuries. The statement made by the defence witnesses is not borne out by the material on record. There is no evidence on record that the appellant suffered any injuries for which he was treated by any doctor. However, they have stated that it was the deceased who assaulted and that the appellant received injuries. The statement made by the defence witnesses is not borne out by the material on record. There is no evidence on record that the appellant suffered any injuries for which he was treated by any doctor. That being so, it is difficult to accept the version of the defence witnesses that it was the deceased who struck the appellant. 15. The injuries sustained by the deceased indicate that he was stabbed in his chest and his lower abdomen. The eye witnesses have also stated that the deceased sustained injuries on his chest and abdomen after the appellant stabbed him. Thus, the ocular evidence tallies with the medical evidence on record. We have, therefore, no reason to disbelieve the eye witnesses. 16. However, the evidence on record unmistakably indicates that the assault occurred after a quarrel between the two brothers. It was not a premeditated attack by the appellant on the deceased. The injuries indicate that it was homicidal death. There is no doubt that the death of the victim was a culpable homicide. However, we are of the opinion that it did not amount to murder. It is obvious from the evidence on record that the appellant had stabbed his brother in the heat of passion after a quarrel with him. The appellant, though he had the intention of causing death, it was because of the sudden fight which erupted between the brothers which prompted him to act in a cruel and unusual manner. The appellant has been in custody for 11 years 6 months. 17. We, therefore, hold that the appellant is not liable to be convicted and sentenced under Section 302 of the IPC. The conviction and sentence imposed by the trial Court is set aside. Instead the appellant is convicted for committing an offence under Section 304 Part I of the IPC. In our opinion, 11 years and 6 months is a sufficient sentence that the appellant has undergone for the crime committed by him. The appellant shall be released immediately if not required to be detained in any other case. The appeal is allowed accordingly.