JUDGMENT M. S. Sonak, J. - Heard Mr. A. Gaonkar, learned counsel for the appellant and Mr. S.R. Rivankar, learned Senior Advocate and Public Prosecutor for the State. 2. At the request and with the consent of the learned counsel for the parties, this appeal was taken up for final disposal. 3. This appeal is directed against the judgment and order dated 30th March, 2019 by which the learned Additional Sessions Judge, Panaji, sitting at Ponda, in Sessions Case No.10 of 2012 convicted the appellant (A1) and his brother Taru Chawan (A2) for offence punishable under Section 302 read with Section 34 of IPC and sentenced them to undergo life imprisonment and fine. 4. By judgment and order dated 29th August, 2019 in Criminal Appeal No.21 of 2019 we have already acquitted the appellant's brother Taru Chawan (A2) relying mainly upon the testimony of Sushila Chawan (PW8), the wife of Thawru Chawan, for whose murder the appellant stands convicted. Mr. Gaonkar, learned counsel for the appellant, relying upon our decision in Criminal Appeal No.21 of 2019 submits that the appellant is entitled to be acquitted. He submits that in any case, even going by the testimony of PW8, who was alleged to be the eye witness to the murder, no case has been made to convict the appellant for murder and at the highest, this might be a case of culpable homicide not amounting to murder. He submits that the appellant is in custody since November, 2011 and therefore, may be released forthwith. 5. Mr. Rivankar, learned Public Prosecutor submits that the decision in Criminal Appeal No.21 of 2019 is distinguishable because as against Taru Chawan (A2), there may have been no evidence to sustain his conviction under Section 302 of IPC. However, PW8, the eye witness has clearly deposed that in her presence the present appellant (A1) stabbed her husband Thawru Chawan. As regards the alternate contention of Mr. Gaonkar, however, Mr. Rivankar leaves the matter for the determination of the Court by pointing out that the evidence of PW8 be considered in its entirety. 6. The rival contentions now fall for our determination. 7. The case of the prosecution is that the appellant alongwith his brother Hiru, on 18/11/2011 at about 19.45 hours went to the house of their third brother Thawru Chawan on their motorcycle to demand money. 6. The rival contentions now fall for our determination. 7. The case of the prosecution is that the appellant alongwith his brother Hiru, on 18/11/2011 at about 19.45 hours went to the house of their third brother Thawru Chawan on their motorcycle to demand money. It is the case of the prosecution that when their brother Thawru refused to give money, both the accused in furtherance of their common intention assaulted Thawru with sandal and knife and murdered him. 8. The prosecution, in support of its case examined Sushila Chawan (Pw8), the wife of the deceased Thawru, as an eye witness to the incident. Since the case of the prosecution is based upon the testimony of PW8, who was said to be the eye witness to the incident, there is really no necessity to advert to the deposition of any other witnesses, in this matter. PW8 has deposed that on 18th November, 2011 at about 8.00 p.m. Hiru (A1-appellant ) and Taru (A2), both, the brothers of her husband Thawru came on a motor cycle to their house. The moment they entered the house, they started demanding money from her husband Thawru. When her husband Thawru refused to give money, there was a fight between the three, in the course of which Taru (A2) removed his sandals and assaulted her husband. Thereafter, Hiru (A1) took out a knife and stabbed her husband. This is what PW8 deposed to in her examination in chief. 9. Pw8, in the cross examination admitted that sometimes her husband used to consume liquor. She admitted that when Hiru was speaking with her husband for almost 10 minutes, Taru (A2) was with her in the verandah talking quite normally and cordially with her. She then deposed that she heard heated discussion between Hiru (A1) and her husband whilst she and Taru (A2) were in the verandah. She categorically deposed that when the incident of stabbing took place, she was near her husband but Taru (A2) was in the verandah. It is on the basis of such clear and categorical testimony of PW8 that Taru (A2) came to be acquitted of the charge of murder vide judgment and order dated 29th August, 2019. 10. Upon consideration of testimony of PW8 in its entirety, it will not be possible to extend similar benefit of acquittal to Hiru (A1). It is on the basis of such clear and categorical testimony of PW8 that Taru (A2) came to be acquitted of the charge of murder vide judgment and order dated 29th August, 2019. 10. Upon consideration of testimony of PW8 in its entirety, it will not be possible to extend similar benefit of acquittal to Hiru (A1). This is because PW8 has clearly deposed that in her presence, she saw Hiru (A1) stabbing her husband. 11. Pw8 was thereafter extensively cross examined. In the course of such cross examination she has substantially admitted that the dispute amongs the brothers was on the issue of maintenance of their parents. PW8 has deposed that her husband was quite well built and almost similar in height to Taru (A2) and that he was a physically strong person. She has also admitted that her husband would get angry if any wrong thing was spoken but not otherwise. She admitted that on the date of the incident even Hiru (A1) spoke to her and her husband informing them that the parents of her husband are sick and that they have to take care of parents. She also admitted that when Hiru (A1) said this, her husband became angry and scolded Hiru (A1). PW8 has even deposed that she told her husband not to scold Hiru (A1) as A1 was speaking the truth. She has deposed that when she said this, her husband, got angry with her and even shouted at her. 12. Pw8 has then deposed that she went out to the verandah and thereafter it is her husband who started beating Hiru (A1). She has admitted that there was fight between her husband and Hiru (A1). She has then deposed that it is in the course of this fight Hiru (A1) stabbed her husband. 13. According to us, if the testimony of PW8 is to be read and accepted in its entirety, it is quite evident that the appellant in this case, ought not to have been convicted for the offence of culpable homicide amounting to murder. The evidence on record in fact suggests that this is a case of culpable homicide not amounting to murder as, the incident has taken place when Hiru (A1) was deprived of power of self control by grave and sudden provocation offered by the deceased Thawru. 14. The evidence on record in fact suggests that this is a case of culpable homicide not amounting to murder as, the incident has taken place when Hiru (A1) was deprived of power of self control by grave and sudden provocation offered by the deceased Thawru. 14. Both A1 and A2 had merely come to inform deceased Thawru that their parents were sick and Thawru as one of the brothers, must also contribute to the maintenance of the parents. Thawru, however, was angry and began to beat Hiru (A1) and it is in the course of this fight that Hiru (A1) stabbed Thawru. There is really nothing on record to suggest that A1 and A2 had come with any intention to kill Thawru. The approach and attitude of Thawru was not appreciated by even his own wife (PW8). In fact, PW8 has deposed that she clearly told her husband Thawru that what Hiru (A1), was saying was quite correct. PW8 has deposed that at this Thawru got angry even with PW8, who had to thereafter go away from the scene. 15. In the aforesaid circumstances, we are quite satisfied that this is a case where Exception 1 to Section 300 of IPC is attracted. In any case, we are also satisfied that this a case where the culpable homicide has been committed by Hiru (A1) without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and there is absolutely no evidence that A1 has taken any undue advantage or acted in a cruel or unusual manner. In fact, this is a case where Thawru had first assaulted Hiru (A1), though, this aspect is not really material. 16. Accordingly, we are satisfied that this is a fit case to set aside the conviction of the appellant under Section 302 of IPC and instead, to convict the appellant for having committed culpable homicide not amounting to murder. 17. In fact, this is a case where Thawru had first assaulted Hiru (A1), though, this aspect is not really material. 16. Accordingly, we are satisfied that this is a fit case to set aside the conviction of the appellant under Section 302 of IPC and instead, to convict the appellant for having committed culpable homicide not amounting to murder. 17. Section 304 of IPC provides that whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to 10 years, of with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 18. In this case, as we have noted, there is no evidence to suggest that any act of Hiru (A1) was with the intention to cause the death of Thawru. However, the act of stabbing Thawru can be said to have been done with the knowledge that it was likely to cause the death of Thawru. In these circumstances, the appellant is liable to be punished under Part II of Section 304 of IPC. 19. The appellant has already undergone incarceration for over 8 years. This according to us, is more than sufficient punishment, in the facts and circumstances of the present case. 20. Accordingly, we partly allow this appeal and set aside the appellant's conviction under Section 302 read with Section 34 of the IPC. Instead we convict the appellant for offence of culpable homicide not amounting to murder and sentence him under Part II of Section 304 of IPC for imprisonment for a term, which he has undergone till date. This means that the appellant will have to be released forthwith, in case, his incarceration is not necessary in relation to any other matter. We order accordingly. 21. The registry to do the needful at the earliest.