JUDGMENT : C.V. Bhadang, J. 1. By this appeal, the appellant is challenging the judgment dated 28/05/2014, passed by the learned Sessions Judge at Panaji in Sessions Case No.31/2010. By the impugned judgment, the appellant has been convicted for the offences punishable under Section 504 and Section 302 of Indian Penal Code (IPC, for short). For the offence punishable under Section 504 of IPC, the appellant has been sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs. 1,000/- and in default, to undergo Simple Imprisonment for one month. For the offence punishable under Section 302 of IPC, the appellant has been sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/- and in default, to undergo Simple Imprisonment for 3 months. 2. The prosecution case may be briefly stated thus : Now deceased Sanjay Gaude, was residing along with his wife Smt. Sunanda (PW-2) and two daughters and father, namely Gopi Gaude (PW-8) at Madkai Tal. Ponda. The appellant is the real brother of the deceased. There were long standing disputes between the deceased and the appellant and there used to be frequent quarrels between them, as has been deposed to by Gopi Gaude (PW-8). The incident in question has occurred on 01/06/2010 at about 14.00 hours at Adanwada, Madkai. It is said that on the date and time of the incident, the deceased was sleeping in his house, when the appellant and his wife Kusum came to the house of the deceased armed with bamboo dandas. It is further the prosecution case that the appellant was abusing the deceased and his family members. After hearing the abuses, the deceased came out of the house and saw the appellant and his wife Kusum with dandas in their hands. It is said that the deceased took the danda from the hand of Kusum, whereupon the appellant accosted the deceased as to why he had taken the danda from the hand of his wife. It appears that some altercation ensued, in which the appellant is said to have assaulted the deceased on the left side temporal region of his head by the bamboo danda. On account of said assault, the deceased sustained bleeding injury and fell down. The appellant and his wife fled from the spot. It appears that some altercation ensued, in which the appellant is said to have assaulted the deceased on the left side temporal region of his head by the bamboo danda. On account of said assault, the deceased sustained bleeding injury and fell down. The appellant and his wife fled from the spot. According to the prosecution, the incident was witnessed by Sunanda (PW-2) as also Gopi Gaude (PW-8) and some others. Both Sunanda (PW-2) and Gopi (PW-8) carried the deceased in the house and called a Medical Officer, on whose advice, the deceased was taken to Primary Health Centre (PHC) at Madkai, when he was advised to be taken to Goa Medical College, Bambolim for further medical treatment. It appears from the record that the deceased was treated at GMC, Bambolim till 03/06/2010, on which day, he succumbed to the injuries. 3. Sunanda (PW-2) lodged a complaint of the incident with Police Station, Ponda on 02/06/2010, on the basis of which, offence under Sections 504 & 326 of IPC came to be registered under the relevant Sections and the investigation was carried out, in which the Investigating Officer (IO) recorded the statements of the witnesses and conducted spot panchanama. On the death of Sanjay, the offence was converted to one under Section 302 of IPC. The IO carried out the inquest panchanama of the dead body of the deceased, which was sent for postmortem examination. The IO conducted seizure panchanama and on completion of investigation, a charge-sheet came to be laid before the learned Judicial Magistrate, First Class at Ponda, which was committed to the Court of Sessions. 4. The learned Sessions Judge framed Charge against the appellant for the offences punishable under Sections 504 and 302 of IPC, to which, the appellant pleaded not guilty and claimed to be tried. It is the defence of the appellant that the deceased had cut the rope of a canoe belonging to the appellant, as a result of which, the canoe drifted in the sea. The appellant claimed that he had gone to the house of the deceased to question him about his act of releasing the canoe and it was the deceased, who provoked the appellant and in the incident, the deceased got injured. 5. The appellant claimed that he had gone to the house of the deceased to question him about his act of releasing the canoe and it was the deceased, who provoked the appellant and in the incident, the deceased got injured. 5. At the trial, the prosecution examined as many as 21 witnesses, including eye-witnesses, namely Sunanda (PW-2), Prashant Gaude (PW-3), Chandrakant Gaude (PW-4), Mohandas Wagekar (PW-5), Umesh Gaude (PW-6) and Gopi Gaude (PW-8) and produced the contemporary record of the investigation. The appellant neither entered into the witness box nor examined any defence witnesses. The learned Sessions Judge came to the conclusion that Sanjay met with homicidal death on account of the injury sustained on his head and it was the appellant, who had intentionally caused the death of Sanjay by assaulting him with 'bamboo danda'. Thus, the learned Sessions Judge found the appellant guilty under both the sections, namely Section 504 and Section 302 of IPC and proceeded to convict and sentence the appellant accordingly, as stated above. Feeling aggrieved, the appellant is before this Court. 6. We have heard Shri Gaonkar, the learned Counsel for the appellant and Shri Rivankar, the learned Public Prosecutor for the respondent/State. With the assistance of the learned Counsel for the parties, we have gone through the evidence and the impugned judgment. 7. At the outset, it may be mentioned that Shri Gaonkar, the learned Counsel for the appellant has restricted his challenge in the appeal. It is submitted that the offence, which can be said to be made out against the appellant can, at the highest, be one under Section 304 Part II of IPC as there was no premeditation on the part of the appellant to cause the death of Sanjay, who was his real brother. It is submitted that the present case would be clearly covered by exception (1) and/ or (4) to Section 300 of IPC in as much as the appellant has not taken any undue advantage and has not acted in a cruel or unusual manner. It is submitted that this is a case of a single blow, which has been accepted by the learned Sessions Judge. It is submitted that it has clearly come on record that after the deceased fell down, the appellant and his wife went away. It is submitted that this is a case of a single blow, which has been accepted by the learned Sessions Judge. It is submitted that it has clearly come on record that after the deceased fell down, the appellant and his wife went away. The learned Counsel submits that had the appellant intended to cause death of Sanjay, he would have assaulted the deceased even thereafter. The learned Counsel has taken us through the evidence of eye witnesses and particularly, the evidence of Gopi (PW-8), in order to submit that there were disputes and frequent quarrels between the appellant and the deceased and in particular, there was an incident, in which the deceased had cut the rope of the canoe belonging to the appellant and the appellant had gone to the house of the deceased to question him on this. The learned Counsel also submits that the appellant had no criminal antecedents and has his wife and two children to look after. He, therefore, submits that the conviction may be modified to one under Section 304 Part II of IPC. He submits that the appellant is in custody since 05/06/2010 and thus, has suffered incarceration for more than 7 years. He, therefore, submits that the appellant be released on the period of sentence already undergone. 8. Shri Rivankar, the learned Public Prosecutor, in all fairness, submits that the offence may be one, which would fall under Section 304 Part II of IPC. It is submitted that this Court may pass appropriate order, having regard to the circumstances and the evidence on record. 9. We have given our anxious consideration to the circumstances and the submissions made and we are inclined to accept the contention on behalf of the appellant that the conviction for the offence punishable under Section 302 of IPC needs to be modified to one under Section 304 Part II of IPC. In view of the fact that the appellant has restricted the challenge to the conversion of conviction to one under Section 304 Part II of IPC, we do not find it necessary to dwell in details on the evidence of the prosecution as led before the learned Sessions Judge. In view of the fact that the appellant has restricted the challenge to the conversion of conviction to one under Section 304 Part II of IPC, we do not find it necessary to dwell in details on the evidence of the prosecution as led before the learned Sessions Judge. Suffice it to mention that it has clearly come on record that there were long standing disputes between the appellant and the deceased and there used to be frequent quarrels between them, as has been deposed to by Gopi (PW-8), who is father of the appellant and deceased and was staying along with the deceased. According to the appellant, the deceased had released a canoe belonging to the appellant, as a result of which, it drifted in the sea and the appellant had gone to the house of the deceased in order to accost him about his said act. It is true that it has come on record that the appellant had taken a bamboo danda with him. However, the fact remains that as per the prosecution case, after the deceased came out of the house, it was the deceased, who snatched the bamboo danda from the hand of Kusum, who is the wife of the appellant. It has also come on record that the deceased accosted the appellant as to why he was abusing him and his family members and in the incident, which ensued thereafter, it is said that the appellant dealt with a single blow of the bamboo danda on the left side of the head of the deceased. The learned Sessions Judge has, at more places, than one accepted that this was a case of single blow. As noticed earlier, the appellant along with his wife, left the spot after the deceased fell down. From the evidence on record, it appears that, in all probability, after the deceased came out of house and accosted the appellant and snatched the bamboo danda from the hand of Kusum, a sudden fight or quarrel would have ensued, in which the appellant assaulted the deceased by means of the 'danda'. It is now well settled that the evidence in such cases, has to be appreciated on the touchstone of the human conduct and broad probabilities. It is now well settled that the evidence in such cases, has to be appreciated on the touchstone of the human conduct and broad probabilities. On a careful consideration of the evidence on record, we are of the view that the appellant had no intention of causing death of his brother Sanjay or of causing such bodily injury as is likely to cause death. As has been rightly submitted on behalf of the appellant, there is no material to show that the appellant has taken undue advantage of the situation or acted in cruel or unusual manner. Thus, in our considered view, the act of the appellant would be covered by the fourth exception to Section 300 of IPC. We, thus, find that the conviction of the appellant needs to be converted into one under Section 304 Part II of IPC as the appellant can only be attributed with knowledge that his act may result into the death of Sanjay. 10. The next question is about the sentence. Offence under Section 304 Part II of IPC is punishable with Imprisonment, which may extend to 10 years OR with fine or both. The appellant is in custody from 05/06/2010 and has, thus, suffered imprisonment for more than 7 years. The appellant is having his wife and two children, who are dependent on him. There are no criminal antecedents to the discredit of the appellant, which are pointed out or brought on record. The appellant was aged 30 years on the date of the incident. Considering the overall circumstances, we find that the period already undergone would be adequate sentence, which will meet the ends of justice. 11. In the result, the following order is passed : (i) The appeal is partly allowed. (ii) Conviction of the appellant under Section 302 of IPC is modified to one under Section 304 Part II of IPC. (iii) For the offence punishable under Section 304 Part II of IPC, the appellant is sentenced to the period already undergone and to pay fine of Rs. 1,000/- and in default, to undergo Simple Imprisonment for three months. (iv) The conviction and sentence, as awarded under Section 504 of IPC, is hereby confirmed. (v) On deposit of the fine, the appellant shall be set at liberty forthwith, if not required in connection with any other offence. (vi) The order regarding disposal of the property, is hereby maintained.