ORDER : 1. This criminal appeal is directed against Judgment and order of conviction and sentence dated 30.08.2011 passed by learned Addl. Sessions Judge (Court No. 3), West Tripura, Agartala, in Sessions Trial No. 154 of 2010. The appellant, Nikhil Shil and his wife, Smt. Ishu Rani Shil, both were charged by the learned Addl. Sessions Judge for commission of offence punishable under Section 448, 323 and 302 read with Section 34 of IPC to which the accused persons pleaded not guilty and claimed to be tried. 2. Learned Additional Sessions Judge at the conclusion of trial found the accused-appellant Nikhil Shil guilty of committing offence punishable under Section 447 and 302 of IPC and, accordingly sentenced him under Section 302 of IPC to suffer imprisonment of life and to pay a fine of Rs.5000/- in default of payment to suffer R.I. for one year. No separate sentence was awarded under Section 447 of IPC. 3. Aggrieved, the convict Nikhil Shil preferred the appeal. 4. We have heard learned counsel, Mr. R. Dutta for the appellant and learned Additional P.P., Mr. R.C. Debnath for the respondent. 5. The prosecution case is that the accused-appellant Nikhil Shil and his elder brother deceased Rakhal Shil were residents of village of Pandabpur, Madhyapara, P.S. Amtali and their houses were situated side by side. Rakhal Shil sold some bamboos to Chan Miah (P.W-9) and on 10.02.2010 at about 4 P.M. Chan Miah with some other laborers were cutting bamboos from the bamboo clamp and at that time the accused Nikhil Shil raised protest. On that issue there was a quarrel between the accused Nikhil Shil and his elder brother Rakhal Shil and in the midst of quarrel the accused Nikhil Shil struck repeated blows on the head and other parts of the body of Rakhal Shil and dragged him towards the drain in front of the house of Rakhal Shil and pushed him inside the drain and as a result Rakhal Shil sustained multiple injuries and lost sense. Smt. Gita Shil (P.W-6), wife of deceased Rakhal Shil, also went to the spot to save her husband and she was also assaulted by the accused Nikhil Shil and his wife, the other accused, Ishu Rani Shil. Smt. Gita Shil (P.W-6), wife of deceased Rakhal Shil, also went to the spot to save her husband and she was also assaulted by the accused Nikhil Shil and his wife, the other accused, Ishu Rani Shil. Hearing the sound of quarrel and the alarm raised by Rakhal Shil and his wife Gita Shil neighbourers came to the spot and found the accused Nikhil Shil assaulting the elder brother Rakhal Shil. Haripriya Shil (P.W-1) the daughter of victim Rakhal Shil rushed to the spot hearing the quarrel, witnessed the occurrence and she with the help of other neighbours and witnesses shifted her injured father and mother to Hapania Hospital where Rakhal Shil was declared dead and Gita Shil was admitted in the Hospital for treatment. Haripriya Shil (P.W-1) lodged FIR in writing at about 18.15 hours and, accordingly, Amtali P.S Case No. 16 of 2010 under Section 447, 325, 302 read with Section 34 of IPC was registered and after investigation charge sheet was submitted against the accused appellant Nikhil Shil and his wife Ishu Rani Shil. 6. Prosecution examined 10 witnesses to prove the charges and also proved certain documents and materials, which are reflected in para 5 of Trial Court's Judgment. 7. After closure of the prosecution evidence accused persons were examined under Section 313 of Cr.P.C and in their defence one witness was examined, namely, D.W-I, Dr. Samar Das. The accused-appellant, Nikhil Shil, at the time of the examination under Section 313 Cr.P.C stated:- “On 10.02.2010 at 2.00 P.M my brother came with Chan Miah and others. I was hearing sound of cutting bamboos in my bamboo bush. I went and raised objection. Chan Miah and other went to the house of Rakhal Shil. Both Rakhal Shil and his wife came to my house with bamboo and brick piece. Both of them assaulted my wife with bamboo, Rakhal through brick to me. I took away the bamboo from Rakhal, as such scuffling took place. People came and they went back to their house. Some people ringed to the Bishalgarh P.S and they came and found that the matter is within Amtali P.S and they did contact with Amtali P.S. Police of both the P.S came and advised us to go to the hospital and, accordingly, I took my wife to Bishalgarh Hospital”. 8. Learned counsel, Mr. Some people ringed to the Bishalgarh P.S and they came and found that the matter is within Amtali P.S and they did contact with Amtali P.S. Police of both the P.S came and advised us to go to the hospital and, accordingly, I took my wife to Bishalgarh Hospital”. 8. Learned counsel, Mr. Dutta appearing for the appellant submitted that the accused Nikhal Shil and deceased victim Rakhal Shil are full blood brothers residing in their respective house situated side by side. It is an admitted position that there was a quarrel between the two brothers on the issue of cutting bamboos by Chan Miah from a bamboo clamp, which the accused claimed to have belonged to him. In the midst of quarrel there was scuffling with bamboo and even if it is believed that the accused struck few blows on Rakhal Shil with bamboo causing the injuries, it cannot be said that those injuries were inflicted with the intention to cause death of the deceased or with such knowledge that the injuries might cause death of the deceased. According to Mr. Dutta, learned counsel, even if the prosecution case is believed as a whole, it may be a case of culpable homicide not amounting to murder punishable under Section 304 part II of IPC. It is candidly submitted by Mr. Dutta that the trial Judge arrived at a wrong finding of guilt under Section 302 of IPC. Learned Addl. P.P., Mr. Debnath also fairly conceded that there is no evidence of intention to kill the deceased Rakhal Shil and, hence, punishment may be converted to one under Section 304 of IPC. 9. We have meticulously gone through the evidence on record and considered the submission of learned counsel of both sides. 10. According to the prosecution P.Ws-1, 4, 5, 6 and 9 are all eyewitnesses of the occurrence. Prosecution also claimed that P.Ws-2 and 3 are also eyewitnesses of the occurrence but they went back to their previous statement and, hence, they were declared hostile by the prosecution and relevant previous statement of P.W-2 has been proved as Exbt-3 and that of P.W.-3 is proved as Exbt-5. 11. In her deposition P.W-1 stated, on 10.02.2010 at about 4 P.M, while she was near a pump house at that time she heard an alarm towards her house and went there. 11. In her deposition P.W-1 stated, on 10.02.2010 at about 4 P.M, while she was near a pump house at that time she heard an alarm towards her house and went there. She saw her uncle Nikhil Shil and aunt Ishu Rani Shil present there. Her aunt was abusing her father Rakhal Shil on the issue of selling bamboo. Thereafter her uncle Nikhal Shil and aunt came there with bamboo. Her uncle assaulted her father by fists and blows and thereafter both of them dragged her father in front of the gate and assaulted her father with bamboo. Her mother also came there to rescue her father and both the accused assaulted her mother also. Her mother was severely assaulted by her aunt. Her uncle also assaulted her mother but that was not severe. They started raising alarm when Nitai Sarkar, Chan Miah, Susmita Das and others came to the spot of incident. Susmita Das on seeing the incident took away the bamboo from the hand of Nikhal Shil. Nikhal strangulated on the neck of her father and also assaulted with bamboo. Her parent became senseless. Thereafter she along with Haripada Adhikari shifted her parent to the Ambedkar Hospital by an Auto Rickshaw. On seeing her father Doctor declared him dead and her mother was admitted in the Hospital. She submitted FIR at about 6.15 P.M to Amtali P.S and she proved the FIR marked as Exbt-1 and her signature is marked as Exbt-1/1 In cross examination she stated that she did not state the incident in details in the FIR. She denied the suggestion that she lodged a false FIR and that her deposition was false. She also denied the suggestion that her mother assaulted accused Ishu Rani Shil with bamboo and that with a view to grab the property of the accused she instituted a false case. 12. P.W-4 in her deposition stated that both the accused and victim were her neighbors for last 20/25 years. The incident occurred on 10.02.2010 at about 4.00 P.M and she saw the incident. She was first informed by Pranati Deb her adjacent neighbour and she went to the place near the drain in front of house both Nikhil Shil and Rakahl Shil and found Nikhil Shil assaulting Rakhal Shil with a bamboo and Rakhal Shil fell on a drain. The incident occurred on 10.02.2010 at about 4.00 P.M and she saw the incident. She was first informed by Pranati Deb her adjacent neighbour and she went to the place near the drain in front of house both Nikhil Shil and Rakahl Shil and found Nikhil Shil assaulting Rakhal Shil with a bamboo and Rakhal Shil fell on a drain. When Nikhil Shil was again trying to assault Rakhal Shil with that bamboo, she took away the bamboo from the hand of Nikhil Shil and restrained him. In the mean time wife of Rakhal Shil came to the spot raising alarm to rescue her husband when Ishu Rani Shil (Wife of Nikhal Shil) pull down wife of Rakhal Shil by holding her hair. Rakhal Shil still was lying in the drain. She and others shifted Rakhal Shil and his wife to Hapania Hospital by an Auto Rickshaw. Haripriya Shil (P.W-1) and Haripada Adhikari (P.W-2) also went to Hospital. In the evening she heard that Rakhal Shil expired and his wife was admitted in the Hospital. On seeing the bamboo the witness identified that the accused Nikhil Shil assaulted his brother Rakahl Shil with that bamboo, which she snatched from the hand of Nikhil Shil. There is nothing material in the cross examination of this witness except the denial and suggestions. 13. P.W-5 in her deposition stated that both the parties (accused and victims) were her neighbours. The incident took place about one year ago at about 4.00 PM. She was in her house, at that time she heard shouting of both Nikhil Shil and Rakhal Shil. After about half an hour she went in front of the house of Rakhal Shil and she saw that Nikhil Shil was dragging Rakhal Shil from his house on a drain near the gate of Nikhil shil and was assaulting Rakhal Shil with one bamboo. Nikhil Shil also strangulated on the neck of Rakhal Shil. In the mean time wife of Rakhal Shil also came to the spot to rescue her husband while Ishu Rani Shil gave fists and blows to the wife of Rakhal Shil and pull her down by holding her hair. In the mean time Susmita Das (P.W-4) took away the bamboo from the hand of Nikhil Shil and one Auto Rickshaw came there and they arranged shifting of Rakhal Shil and his wife to hospital. In the mean time Susmita Das (P.W-4) took away the bamboo from the hand of Nikhil Shil and one Auto Rickshaw came there and they arranged shifting of Rakhal Shil and his wife to hospital. Haripriya Shil was raising alarm and hearing her alarm people from the neighborhood came and shifted the injured. She heard that Rakhal Shil expired in the Hospital and his wife was admitted in the hospital. She also identified the bamboo which was marked as Exbt-M.O.1. Except suggestion and denial there is nothing material in the cross examination of this witness also. 14. P.W-6, Gita Shil is the wife of deceased Rakhal Shil. In her deposition she stated that on 10th February one year ago at about 4.00 P.M the incident took place. Her husband was selling bamboo when Nikhil Shil raised objection. Then her husband instructed the labourers to cut the bamboos from other bamboo bush. Nikhil Shil and his wife started abusing her husband. Her husband came forward when Nikhal Shil and his wife started assaulting her husband by fists and blows and bamboo and thereafter he was dragged to a drain in front of their gate. She went to rescue her husband when both of them assaulted her by fists and blows and bamboo. She became senseless and regained sense at Hapania hospital at about 9.00 P.M. She and her husband were taken to Hapania hospital. She was admitted in the hospital. Her husband was declared dead in the hospital. Besides suggestion and denial there is nothing material in the cross examination of this witness also to discard his testimony in respect to the incident. 15. P.W-9 Chan Miah in his deposition stated that he knew both Rakhal Shil and Nikhil Shil and wife of Nikhil Shil. On the date of incident he purchased 25 Nos. of bamboos from Rakhal Shil in consideration of Rs.500/- and he went with two labourers to cut the bamboos. The laborers were Nitai Sarkar and Julesh Miah. He called Rakhal Shil as uncle. They cut about 3/4 bamboos from the bush of Rakhal Shil. At that time accused Nikhil Shil went there and raised objection. He informed Rakhal Shil about the objection of Nikhil Shil but Rakhal Shil told him to cut the bamboos again. Accordingly, he went and while cutting bamboos, he heard hue and cry in the house of Rakhal Shil. They cut about 3/4 bamboos from the bush of Rakhal Shil. At that time accused Nikhil Shil went there and raised objection. He informed Rakhal Shil about the objection of Nikhil Shil but Rakhal Shil told him to cut the bamboos again. Accordingly, he went and while cutting bamboos, he heard hue and cry in the house of Rakhal Shil. He went to the house of Rakhal shil and found Nikhil Shil assaulting Rakhal Shil by a bamboo stick and Rakhal Shil was dragged toward road side. There was a drain by the side of the road and Rakhal was pushed into the drain. Nikhil Shil also throttled on the neck of Rakhal Shil and was also beating Rakhal Shil on the drain. In the mean time neighbouring people came and one woman of adjacent house took away the bamboo from the hand of the Nikhil Shil. He identified the bamboo stick, marked as Exbt.-M.O.1. Due to the assault Rakhal Shil sustained injuries on his person. Thereafter he left the place. There is nothing material in the cross examination of this witness to throw doubt in the authenticity of the statement. 16. P.W-8, Dr. Pranab Choudhuri conducted Postmortem examination over the dead body of Rakhal Shil. The witness stated:- “On examination the following ante mortem injuries were found. 1. Lacerated injury present on the left side face 1.2 cm below the left side lower eye lid and 4.2 cm left to the mid line size 1.4 cm x .8 cm x skin deep. 2. Lacerated injury present on the left side face 2.5 cm below the fronto nasel junction angle and 1 cm left to the mid line measuring 1 cm x .5 cm x skin deep. 3. Contused abression present on the right side scapular region 10 cm below the hip of shoulder and 6.8 cm right to midline size 3 cm x 1 .2 cm. On reflexation sculf no scull fracture senn, maniges are normal and intact, brain matter conjested and iddematous, sub arachnoid hammaerohage present on the left side frontal and part of parieto temporal region. All the injuries mentioned above are ante mortem injuries caused by impact of some hard and blunt object and age of injury is fresh at the time of death. Time since death around 21 hours. Cause of death in this case was coma due to head injury. All the injuries mentioned above are ante mortem injuries caused by impact of some hard and blunt object and age of injury is fresh at the time of death. Time since death around 21 hours. Cause of death in this case was coma due to head injury. This is the report submitted by me. On identification the report and signature are marked as Exhibit-7 and 7/1 respectively. Seized bamboo (M.O.1) is a blunt and hard object and all those ante mortem injuries can be sustained by this seized bamboo (The witness opined on seeing the seized bamboo as shown by Ld. Addl. P.P.)” In the cross examination the evidence of this witness has not been shaken. 17. It is, therefore, evident that Rakhal Shil died a homicidal death on receipt of ante mortem injuries on his head and other parts of the body. 18. It is the definite case of the prosecution that there was a quarrel between the accused Nikhil Shil and deceased Rakhal Shil on the issue of cutting bamboos from a bamboo clamp. The deceased Rakhal Shil sold out bamboos to P.W-9, Chan Miah and when Chan Miah was cutting the bamboos from the bamboo clamp, the accused Nikhil Shil raised protest and on that issue a quarrel was picked up between the two brothers and in the midst of quarrel their respective wife also participated. All the eyewitnesses stated that the accused Nikhil Shil assaulted Rakhal Shil with a piece of bamboo which was seized by I.O. and proved as Exbt.-M.O.1. The autopsy surgeon gives definite opinion that the injuries he found on the death body of Rakhal Shil may be caused by Exbt.-M.O.1. There is nothing in the evidence that the relation between the two brothers were strained. There is also nothing in evidence that the accused and his wife had a previous meeting of mind or per-arranged plan to commit murder of Rakhal Shil. 19. A careful reading of the depositions of all the eyewitnesses make it clear that in the midst of quarrel, on the issue of cutting bamboos from the bamboo clump, the accused assaulted his elder brother Rakhal Shil with Exbt. M.O.1, a piece of bamboo. 19. A careful reading of the depositions of all the eyewitnesses make it clear that in the midst of quarrel, on the issue of cutting bamboos from the bamboo clump, the accused assaulted his elder brother Rakhal Shil with Exbt. M.O.1, a piece of bamboo. In his statement recorded under Section 313 of Cr.P.C. the accused took a plea that the deceased Rakhal Shil attacked him with bamboo and he snatched the bamboo from the hand of Rakhal Shil and at that time there was a scuffling. There is no evidence to support this contention of the accused. 20. D.W-1 is a Medical Officer of Bishalgarh Hospital and he only proved the injuries in respect of Ishu Rani Shil, the wife of accused Nikhil Shil. It is evident that both the brothers and their wifes were engaged in the quarrel and the accused assaulted his elder brother with a piece of bamboo. Exbt.-M.O.1, the piece of bamboo, cannot, as such, be treated as a dangerous weapon. But no doubt it is a weapon of offence used by the accused while assaulting deceased Rakhal Shil. It is quite evident that the deceased Rakhal Shil died a homicidal death on receipt of injuries, but there is no evidence at all to show that the accused was having with the intention to cause death of his brother by inflicting the injuries. The act of the accused-appellant, in our consider opinion, is squarely covered by Exception 4 of Section 300 of IPC. Exception 4 reads as follows:- “Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” The evidence on record is clear that there was a sudden quarrel between the brothers on the issue of cutting bamboos from a bamboo clamp and in the midst of quarrel without any premeditation the accused assaulted his brother and as a result his brother Rakhal Shil sustained injuries on head and unfortunately died. The offence, therefore, squarely comes under the purview of Section 304 part II of IPC. 21. The offence, therefore, squarely comes under the purview of Section 304 part II of IPC. 21. Considering the evidence and materials on record, we are of considered opinion that punishment recorded by the learned trial Judge under Section 302 of IPC is not reasonable and, hence, liable to be interfered and converted to one under Section 304 part II of IPC. Accordingly, the Judgment and Order of conviction and sentence under Section 302 as inflicted by learned Additional Sessions Judge is modified to one under Section 304 part II of IPC and the accused-appellant Nikhil Shil is accordingly convicted under Section 304 part II of IPC and we direct that he should suffer R.I. for five years and shall pay a fine of Rs. 25000/- in default of payment shall suffer further R.I for two and half years. Fine money, if realized, be paid to the wife and daughter of the victim Rakhal Shil, namely, Smt. Gita Shil and Smt. Haripriya Shil as a token of compensation. 22. Accordingly, the appeal is partly allowed and disposed off. 23. Send back the L.C. records along with a copy of this Judgment.