JUDGMENT : Anjana Prakash, J. 1. The Appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to R.I. for life and a fine of Rs. 20,000/- (half of amount was to be paid to the legal heirs of the deceased) in default of which R.I. for two months by a judgment of conviction and order of sentence dated 25.02.2016/01.03.2016 by the 2nd Additional Sessions Judge, Muzaffarpur in S.Tr. No. 866 of 2008/Tr. No. 3018 of 2008 arising out of Bochaha P.S. Case No. 162 of 2008 (G.R. No. 2964 of 2008). 2. The case of the prosecution according to the Informant, P.W. 10, Sharda Devi, is that on 23.09.2008 when her husband deceased (Bira Sahani) was going to sleep she saw the Appellant also going there and the Appellant assaulted the deceased with “Fasuli” on the neck on account of which he fell down dead. 3. During trial the prosecution examined eleven witnesses. 4. P.W. 1, Tullu Sahani the nephew of the deceased has stated that he had seen the Appellant assaulting the deceased with the “Fasuli” but in cross-examination he conceded that he had gone to the place of occurrence after two minutes on hearing the muffled sounds of the deceased meaning thereby he was not an eye-witness. 5. P.W. 2, Nantun Sahani is a hearsay witness who had gone to the place of occurrence on hulla and learnt about the occurrence from the Informant. However, the Informant has not corroborated this part of the story and, therefore, his hearsay account is not admissible. He further stated that there was some kind of dispute between the two brothers over their wives on account of which occurrence took place. 6. P.W. 3, Butni Devi is the wife of Rajdeo Sahani who also stated that the Appellant assaulted the deceased with a “Fasuli” on account of which he fell down dead. He stated that the Appellant had instituted a case against her husband (deceased) but later on the matter had been patched up. He also conceded that the deceased used to drink but had left drinking a few months back. 7. P.W. 4, Radhiya Devi wife of P.W. 2, Nantun Sahani saw the Appellant fleeing away from the place of occurrence. She stated that no one went to look into the house of Laldeo Sahani nor did any one tried to catch him. He also conceded that the deceased used to drink but had left drinking a few months back. 7. P.W. 4, Radhiya Devi wife of P.W. 2, Nantun Sahani saw the Appellant fleeing away from the place of occurrence. She stated that no one went to look into the house of Laldeo Sahani nor did any one tried to catch him. She further stated that the deceased used to sleep in the house of Mukhiya, Ranjit Rai and his wife used to escort him every day. 8. P.W. 5, Rambachan Sahani is the next witness who heard about the occurrence but stated that he had not been examined by the Police and, therefore, his evidence is invalid. 9. P.W. 6, Bharti Kumari is the daughter of the deceased who stated that she had seen her uncle the Appellant assaulting her father with “Fasuli” on account of which he fell down dead. In cross-examination, she stated that the Appellant used to deal in toddy and used to run a toddy shop from his house. She also stated that 4-5 months before the occurrence her father and uncle had fought but her father had not been sent jail on account of such incident. Her attention was drawn to the earlier statement that she had merely stated that she had seen her father in an injured condition. 10. P.W. 7, Indu Kumari is the daughter-in-law of the deceased who stated about the Appellant having caused the death of her father. However, her attention was drawn in the cross-examination to her earlier statement wherein she stated that she had merely seen the Appellant fleeing away from the place of occurrence. She further stated that it was a dark night and the identification was in lantern light. 11. P.W. 8, Reena Devi is the daughter-in-law of the deceased who also supported the factum of the Appellant assaulting the deceased with a “Fasuli”. She explained that there was no dispute between her father-in-law and the Appellant who were brothers and father-in-law used to be escorted by the Informant every day. 12. P.W. 9, Shivshankar Sahani is the son of the deceased who is hearsay and has proved the signature on the inquest report which is marked as (Exhibit-1). There is nothing else which is of note. 13. 12. P.W. 9, Shivshankar Sahani is the son of the deceased who is hearsay and has proved the signature on the inquest report which is marked as (Exhibit-1). There is nothing else which is of note. 13. P.W. 10, Sharda Devi, the Informant stated in the First Information Report that on the date of occurrence while her husband was going to sleep in the house of Ranjit Rai the Appellant assaulted him on the neck on account of which he fell down dead. While she was there but rest of the witnesses including Arti Devi, Shiv Shankar Sahani, P.W. 9, Nantun Sahani, P.W. 2, Radhia Devi, P.W. 4 all came on hulla. She then gave her fardbeyan which the Police duly recorded. She stated that it was a dark night but she had seen the occurrence on account of the lantern which was burning in front of the house of Rajdev Sahani. She further stated that Ranjit Rai was the Mukhiya of the village and her husband used to work for him and used to come and go from there. She further stated that after the occurrence several persons came including the Police. 14. P.W. 11, Sandeep Kumar Singh is the Investigating Officer who stated that from 23.09.2008 he assumed investigation on the basis of the fardbeyan of the Informant and inspected the place of occurrence as also recorded the statement of the witnesses. He proves the inquest report which is (Exhibit-2) and the Post-mortem Examination Report which is (Exhibit-3). He proves his signature on the formal First Information Report as (Exhibit-4) and the fardbeyan as (Exhibit-5). He further stated that he has received information at 8.40 P.M. whereafter he had reached the place of occurrence and recorded the fardbeyan. He further stated that the occurrence had taken place on account of a minor dispute between the two brothers. 15. On behalf of the defence the rest of the two brothers were examined namely Kishore Sahani, D.W. 1 and Sonelal Sahani, D.W. 2. 16. D.W. 1, Kishore Sahani stated that the deceased and the Appellant were his brothers but they were all separate whereas the deceased was a powerful person and used to get into altercation with several villagers. On the date of occurrence on hulla he went there and then learnt about it from the Informant. He stated that the Informant was just screaming that “kat diya kat diya”. On the date of occurrence on hulla he went there and then learnt about it from the Informant. He stated that the Informant was just screaming that “kat diya kat diya”. 17. D.W. 2, Sonelal Sahani who is also brother of the Appellant, deceased and D.W. 1 said that on the night of occurrence he was sleeping in the house he suddenly heard the crying of his sister-in-law and came out and saw his brother dead, it was a dark night and it was quite possible that the deceased may have killed by unknown persons on account of his bad habits. 18. On going through the evidence of the prosecution witnesses, we find that admittedly the deceased and the Appellant were own brothers and there was no major dispute between the two and, hence, there was no reason that the Appellant to have suddenly killed the deceased without any provocation. In such circumstances, we are inclined to believe that the prosecution has not come out with the true story. However, if at all the factum has to be believed at best it appears to be a case in which the Appellant caused the injury on the deceased with no intention of causing his death. There was no repetition of blow nor has the Doctor been examined which in some respect has caused prejudice to the Appellant. Under these circumstances, we would think that the Appellant at best is fit to be convicted under Section 304 Part (I) IPC and sentence be reduced to one already undergone by him which is about eight years. 19. In the result, the Appeal is dismissed with modification in conviction and sentence. Appeal dismissed.