JUDGMENT M.A. Ali, J. - Heard Mr. P. Goswami, learned Amicus Curiae for the appellant and Mr. M. Phukan, learned Addl. P.P., Assam for the respondents State. 2. This appeal is directed against the judgment and order dated 27.08.2018 passed by the learned Sessions Judge, Sibsagar in Sessions Case No. 141 (S-N)/2015, whereby the appellant was convicted under Section 302 IPC and sentenced to rigorous imprisonment for life and fine of Rs. 1000/- with default stipulation. 3. The deceased in the instant case was Rajesh Rabi Das, who met with an unfortunate death as a consequence of the injury inflicted by his own brother, the present appellant. As per prosecution case, on 04.12.2014, when the deceased was rebuking his wife, the appellant inflicted injury to the deceased with an Axe under the impression that the deceased was hurling abuses to him. The wife of the deceased lodged the FIR (Ext.5), on the basis of which, police registered Nazira P.S. Case No. 239/2014 under Section 447/302/325 IPC and eventually submitted charge sheet against the present appellant, upon completion of the investigation. 4. During trial, charge was framed against the appellant under Section 302, which was abjured by him. In order to substantiate the charges, prosecution examined 8 witnesses including the doctor and the Investigating Officer. The court also examined one witness of its own as CW-1. 5. Pw-3 is the doctor, who conducted the post-mortem examination on the body of the deceased found the following injuries (i) multiple bruise and abrasion over the abdomen and both upper limb and lower limb, (ii) lacerated injury over the occipital region, measuring 4 cm X bonny depth surrounded by clotted blood, (iii) underlying the aforesaid injury large hematoma, size 4cm X 4cm was present. In the opinion of the doctor, the death was due to shock and hemorrhage as a result of head injury. No cross examination was directed challenging the finding of the autopsy doctor, and as the medical evidence as to the cause of death remained unimpeached. 6. Pw-1, the wife of the deceased was the star witness of the case. She testified that on the date of occurrence when her husband returned from work, there was an altercation followed by a quarrel between the appellant and her husband. Later, the appellant assaulted her husband with a piece of bamboo. 6. Pw-1, the wife of the deceased was the star witness of the case. She testified that on the date of occurrence when her husband returned from work, there was an altercation followed by a quarrel between the appellant and her husband. Later, the appellant assaulted her husband with a piece of bamboo. Receiving the injury, her husband fell down and died after a short while. She informed the VDP Secretary (PW-2), who immediately arrived at the place of occurrence and handed over the appellant to police. During cross examination, it was elicited that the deceased used to consume liquor and very often used to pick up quarrel with the members of the family. 7. According to PW-2, Hemo Mukti, the Secretary of the VDP, on being informed that a quarrel ensued, he came to the place of occurrence and found the body of the deceased Rajesh Rabi Das lying in the courtyard. He also met the appellant there, who confessed before him that he killed Rajesh by assaulting him with a lathi. He also stated that police seized the 'lathi' (stick) vide Ext. 1, seizure list in his presence. 8. According to PW-5, having come to know about the occurrence, he came to the house of the deceased and found the body of the deceased lying there. He also stated that during his presence, police came there and seized the bamboo stick vide Ext.1. The PW-6 was an witness to the inquest. The testimony of PW-4 was hearsay, as he came to know about the occurrence later on and as such his evidence was of no consequence. 9. Appreciating the above evidences, learned Sessions Judge convicted the appellant under Section 302 IPC and awarded sentence as indicated above. 10. During the course of argument, both the learned amicus curiae as well as the learned Addl. P.P. contends that the facts and circumstances, under which, the death of the deceased Rajesh Rabi Das was caused, did not justify a conviction under Section 302 IPC, inasmuch as, as there was no intention to cause death of the victim by the appellant. 11. Admittedly, the appellant and the deceased were brothers and the deceased used to consume liquor and very often picked up quarrel with the members of the family. 11. Admittedly, the appellant and the deceased were brothers and the deceased used to consume liquor and very often picked up quarrel with the members of the family. It is also discernible from the evidence on record that on the day of occurrence also, a quarrel took place between the appellant and the victim, when the deceased was rebuking his wife, inasmuch as, according to PW-1, when the deceased was rebuking her, the appellant thought that he was being rebuked and therefore assaulted the deceased with a bamboo stick. The oral testimony of PW-1 as well as the medical evidence also clearly established that a single blow was given on the head of the victim by a piece of bamboo. 12. Therefore, all the attending circumstances, that the victim and the deceased were brothers and there was no enmity between them, that the deceased used to consume liquor and very often picked up quarrel with the members of the family and on the day of occurrence also, there was quarrel between the two brothers, following which, the appellant dealt a single blow on the head of his brother with a bamboo stick, speaks loud and clear that there was no intention to cause death. In view of the nature of weapon used and the single blow given following a quarrel, it is also difficult to say that the appellant had any intention to cause such grave injury as is likely to cause death. However, from the fact that the appellant hit the victim on his head, knowledge can very well be attributed to the appellant that the blow given by him was likely to cause death. The Apex Court in a number decisions observed that where there was no intention to cause death, the penal provision of Section 302 IPC is not attracted, but if the assailant knew that such injury would likely to cause death the conviction shall be under Section 304 Part-II IPC (see Thanka Chan Vs. State, (2005) 11 SCC 563 ; Shankar Narayan Bhadolkar v. State of Maharashtra, (2005) 9 SCC 71 ). 13. Taking note of the fact that there was no intention to cause death or intention to cause such grave injury as is likely to cause death, we set aside the conviction of the appellant under Section 302 IPC, instead, convict him under Section 304 Part-II IPC. 14. 13. Taking note of the fact that there was no intention to cause death or intention to cause such grave injury as is likely to cause death, we set aside the conviction of the appellant under Section 302 IPC, instead, convict him under Section 304 Part-II IPC. 14. From the record, we have noticed that the appellant was arrested on 06.12.2014 and since then he is in jail for more than six years. Since the appellant has completed more than six years in jail, we are of the view that imprisonment for the period, which the appellant has undergone in custody during investigation and trial would meet the ends of justice. Accordingly, we sentence the appellant to imprisonment for the period, which he has already undergone in custody. The appellant shall be released from the jail forthwith, if not required in any other case. 15. With the modification in the conviction and sentence as indicated above, the appeal stands partly allowed and disposed of. 16. Appreciating the assistance rendered by Mr. P. Goswami, learned Amicus Curiae, we hereby provide that he will be entitled to Rs. 7500/- as professional fee, which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment. 17. Send down the LCR.