JUDGMENT : AJIT SINGH, J. 1. The sole appellant Mohan Bora @ Guni has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 2,000/- with default stipulation. However, his co-accused Lakhiram Bora has been acquitted by the trial court. 2. The victim of the incident was Baptu Bora, aged about 33 years. 3. According to the prosecution case, on 29.04.2012, at about 3 p.m., Baptu Bora went to Doigrung Bazar for some business. But, therefrom, he went to the house of Lakhiram Bora of Doigrung Miri Pothar Gaon on being called by one Manoj Bora (PW-5). Appellant is the son of aforesaid Lakhiram Bora. There, a quarrel took place between Baptu Bora and others. Baptu Bora was then assaulted, as a result of which, he sustained grievous injuries on his head. He was immediately taken to the Golaghat K.K. Civil Hospital by Manoj Bora, but there he breathed his last at about 2:10 a.m. 4. Gobin Bora (PW-2) - elder brother of Baptu Bora - coming to know about the death of his brother, lodged Exhibit-2 - First Information Report on the next day at Golaghat Police Station which was registered vide case No. 256/2012 for an offence under Section 302/34 of the Indian Penal Code. In his first information report, he stated that Manoj Bora took Baptu Bora to the house of Lakhiram Bora where, Lakhiram Bora, Manoj Bora and the appellant together assaulted him, due to which, he died. 5. Prior to lodging of the First Information Report, Sub-Inspector B.K.Chetry (PW-7) was informed about the occurrence by ASI Lakheswar Buragohain and B.K. Chetry immediately rushed to the Hospital and after conducting inquest over the dead body of Baptu Bora, sent the dead body for post mortem examination. He also visited the place of occurrence and recorded statement of witnesses, drew Exhibit-5 sketch map and arrested the appellant and his father Lakhiram Bora. 6. Dr. Pallavi Gogoi (PW-1) conducted post mortem examination on the dead body of Baptu Bora. She found one lacerated injury on the scalp of about 3" x 2" x " over left parietal region near the midline and fracture of the underlying left parietal bone besides haematoma measuring 3" x 2" x 2" over left parietal lobe. According to her, death was due to shock and haemorrhage due to head injury. She found one lacerated injury on the scalp of about 3" x 2" x " over left parietal region near the midline and fracture of the underlying left parietal bone besides haematoma measuring 3" x 2" x 2" over left parietal lobe. According to her, death was due to shock and haemorrhage due to head injury. Her post mortem examination report is Exhibit-1. 7. On completion of investigation, B.K.Chetry submitted Exhibit-6 charge-sheet against the appellant and Lakhiram Bora. 8. During trial, both the accused abjured their guilt. But, the trial court relying upon the prosecution evidence, especially, Manoj Bora, who testified that Baptu Bora made a verbal dying declaration before him that the appellant had assaulted him on his head, convicted and sentenced the appellant and acquitted Lakhiram Bora as aforesaid. 9. It is argued on behalf of the appellant that there is no eye witness to the incident and as such, it is not safe to convict the appellant on the basis of sole testimony of a single witness without being supported by any other cogent evidence. The verbal dying declaration made by Baptu Bora before Manoj Bora is not reliable and as such, it is not proved beyond reasonable doubt that appellant is the perpetrator of crime and hence, the conviction is not sustainable. Alternatively, it is argued that there was no enmity between Baptu Bora and the appellant and there being no intention to kill him, the appellant acted in a sudden feat of anger for which the appellant is not guilty for committing an offence under Section 302 but under Section 304-II of the Indian Penal Code. However, the learned Additional Public Prosecutor defended the impugned conviction and sentence. 10. After hearing the learned counsel for the parties and perusing the records, we are of the view that the appeal deserves to be partly allowed. Admittedly there is no eye witness. But, Manoj Bora has categorically testified that on the day of occurrence, he met Baptu Bora while coming to the market. Baptu Bora told him that appellant assaulted him on his head with a bottle for which he sustained injuries and so he requested Manoj Bora to take him to the hospital. Manoj Bora then took him to the hospital and after admitting him, informed family members of Baptu Bora. Baptu Bora told him that appellant assaulted him on his head with a bottle for which he sustained injuries and so he requested Manoj Bora to take him to the hospital. Manoj Bora then took him to the hospital and after admitting him, informed family members of Baptu Bora. Manoj Bora in his statement before police recorded under Section 161 of the Code of Criminal Procedure has also stated that Baptu Bora told him that appellant assaulted him with a bottle on his head. Thus, his testimony in the court has not changed from his earlier version making his evidence believable. The fact that Manoj Bora took Baptu Bora to the hospital is further corroborated by the evidence of Gobin Bora, who has testified that when coming to know about the occurrence, he went to the spot, there Lakhiram Bora told him that Manoj Bora took Baptu Bora to hospital. Besides, Gobin Bora testified that Manoj Bora told him that Baptu Bora was in Golaghat Civil Hospital. Therefore, it is clear that Manoj Bora found Baptu Bora immediately after the occurrence and he took Baptu Bora to the hospital. Thus, it is very natural that Baptu Bora could have made oral dying declaration before Manoj Bora. Manoj Bora has categorically deposed Baptu Bora told him that appellant assaulted Baptu Bora with a bottle on his head and the injuries sustained by Baptu Bora could have been caused by such a heavy assault with a bottle on his head. 11. We, therefore, find ourselves in complete agreement with the finding of the trial court that appellant alone was the perpetrator of the crime. But, there is nothing on record to show that appellant had any enmity with Baptu Bora. Not a single witness has whispered about it. Therefore, it can be inferred that there was a sudden brawl between appellant and Baptu Bora and the appellant made a single sudden and grave assault on Baptu Bora in a spur of moment without having any intention to kill him. There is no other injury, except one head injury, seen on the dead body of Baptu Bora. Hence, we are of the considered view that the appellant is not guilty for committing an offence under Section 302 but for offence under Section 304-II of the Indian Penal Code. Accordingly, we alter the conviction and sentence of the appellant. There is no other injury, except one head injury, seen on the dead body of Baptu Bora. Hence, we are of the considered view that the appellant is not guilty for committing an offence under Section 302 but for offence under Section 304-II of the Indian Penal Code. Accordingly, we alter the conviction and sentence of the appellant. The appellant is sentenced to undergo 5(five) years of rigorous imprisonment with default stipulation for committing an offence under Section 304-II of the Indian Penal Code. However, the fine imposed by the trial court remains unaltered. The impugned conviction and sentence is set aside and altered as indicated above. 12. Appeal is partly allowed.