Ajit Singh, C.J. - The appellant Sabul Hussain Laskar has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 5000/- with default stipulation for committing the murder of his brother- Baharul Islam Laskar.

2. According to the prosecution case, the appellant and his deceased brother Baharul Islam Laskar lived jointly along with their mother and sister - Alpana Begum Laskar (PW-3) in a house having three rooms. The appellant and Baharul Islam Laskar had occupied a room each whereas their mother and sister- Alpana Begum Laskar had occupied the third room. On 16.2.2016, at about 11 p.m., for some reason, Baharul Islam Laskar picked up a quarrel with the appellant, who retaliated by hitting on the head of Baharul Islam Laskar with a grinding stone. On hearing the commotion, Alpana Begum Laskar and mother intervened, but the appellant paid no heed to them. Baharul Islam Laskar, with the help of neighbours, was, first, taken to Police Station Kasudaram and then to Silchar Medical College Hospital, where he was declared dead. Ejahar of the incident (Exhibit I) was lodged on 17.2.2016 at Police Station Kasudaram by Bebul Hussain Laskar (PW2), who also happens to be brother of both appellant and Baharul Islam Laskar. In the ejahar, Bebul Hussain Laskar categorically mentioned the name of appellant as the assailant of Baharul Islam Laskar.

3. Dr.Gunajit Das (PW-6) conducted the post mortem examination on the dead body of Baharul Islam Laskar. He found abrasions 3 x 01 cm, 02 x 02 cm, 02 x 01 cm over front of left forehead, front of right forehead and 01 cm lateral to right eye respectively. The doctor, in his post mortem examination report Exhibit 5, opined that the cause of death was due to head injuries, which were possibly caused by the seized grinding stone.

4. The appellant was later caught by the neighbours and thereafter handed over to the police. The police seized a grinding stone having weight of 5 kg and one pillow cover stained with blood from the house of Baharul Islam Laskar.

5. During trial, the appellant took the plea that he often demanded his share in the paternal property (house) and for this reason, Baharul Islam Laskar and Bebul Hussain Laskar used to assault him. And, on the night of incident, both Baharul Islam Laskar and Bebul Hussain Laskar assaulted him and when he tried to run away, they threw grinding stone at him, which accidently hit Baharul Islam Laskar. The trial court, however, disbelieved the defence of appellant and convicted him as mentioned above.

6. Alpana Begum Laskar is an eye witness to the incident. She is also sister of both appellant and Baharul Islam Laskar (deceased). She has categorically testified that on the date of incident, she was unmarried and lived in the same house along with appellant, Baharul Islam Laskar and also their mother. According to her evidence, just before the incident, a quarrel took place between the appellant and Baharul Islam Laskar, whereafter, the appellant, in a fit of anger, caused head injuries to Baharul Islam Laskar with a grinding stone. Alpana Begum Laskar has also testified that she and her mother tried to restrain the appellant, but he did not pay any heed. According to her evidence, she and her mother, then, raised hue and cry, hearing which, neighbouring people arrived in their house. We have carefully examined the evidence of Alpana Begum Laskar and we find that nothing has been brought out in her cross examination to discredit her. She, being the sister of both appellant and Baharul Islam Laskar, had no reason to falsely implicate the appellant. She, having lost one brother, in our considered view, would not give false evidence against the appellant to lose another brother. She has also emphatically denied the defence of appellant that on the night of incident, Baharul Islam Laskar and Bebul Hussain Laskar assaulted him over a property dispute and when he tried to fled, they threw grinding stone at him, which accidently struck Baharul Islam Laskar. The defence of appellant, however, confirms that he was present at the place of incident and his defence is apparently false because Baharul Islam Laskar was found injured inside his room and not outside the house. We also appreciate the courage of Alpana Begum Laskar for being honest and truthful in the court. The evidence of Alpana Begum Laskar is further corroborated by the medical evidence. Dr. Gunajit Das has confirmed that the injuries found on the dead body of Baharul Islam Laskar could be possibly caused by seized grinding stone.

7. In view of the evidence of Alpana Begum Laskar, the learned counsel for the appellant has not assailed the prosecution story, which is well founded and fully proved. Accordingly, we confirm the finding of the trial court that appellant alone was the perpetrator of the crime.

8. Learned counsel for the appellant has, however, argued that even accepting the prosecution case in totality, it cannot be said that appellant had the intention to murder his brother Baharul Islam Laskar and as such, the offence will not be under Section 302 of the Indian Penal Code, but under Part I or Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. The incident took place in a house on a sudden quarrel without any pre-meditation. It appears that Baharul Islam Laskar picked up a quarrel over his share in the house, which enraged the appellant, who, in a fit of anger, dealt a blow or two on his head with a grinding stone, which proved fatal and resulted into his death. Having regard to the circumstances, in which the incident took place, particularly the act of appellant, we are unable to believe that he had any intention to cause the death of Baharul Islam Laskar. It can, however, be safely held that he had the knowledge that by causing injuries to Baharul Islam Laskar on his head with a grinding stone, the latter would die.

9. Consequently, we set aside the conviction of the appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to him and instead, convict him under Section 304 Part II of the Indian Penal Code and award a sentence of 6(six) years rigorous imprisonment. The sentence of fine is however affirmed. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us.

10. With the above modification, the appeal is partly allowed.