JUDGMENT 1. Balbir Singh was tried alongwith his mother Smt. Viran for causing the murder of Sabu Singh with whom Smt. Viran is alleged to have performed Nata Marriage. It appears that after the dissolution of her first marriage by which Smt. Viran had given birth to three sons and a daughter. She Married the deceased Sabu Singh about seven years before the occurrence which took place on 4th August, 1969 at about 8 P.M. in the house of Sabu Singh in village Surewala situated at a distance of about 16 miles from village Surewala. The accused Balbir Singh is one of the three Sons born to Smt. Viran by her first husband. A fourth son named Satham was born to Smt. Viran out of her wedlock with Sabu Singb. It is said that Balbir Singh was a boy of bad character and used to quarrel with Sabu Singh frequently. It is also the prosecution case that the relations between the deceased Sabu Singh and Smt. Viran were not happy. The prosecution case is that on 4th August, 1969 at about 8 P.M. on hearing the wails of his brother Sabu Singh coming from Sabu Singh's house, PW 1 Labh Singh went into the house of the deceased and saw that Smt. Viran had caught hold of Sabu Singh by the tuft of his hair and Balbir Singh gave a blow with a knife in Sabu Singh's chest, as a result of which Sabu Singh fell dead. PW 6 Dayal Singh, PW 7 Ranjha Singh and PW 2 Bahadur Singh are also alleged to have come to the spot at that time. Labh Singh and Dayal Singh caught hold of Balbir Singh and tied him with a rope and then took him in a jeep to the Police Station Tibi where PW 1 Labh Singh lodged a verbal report of the occurrence to the Station House Officer, Police Station Tibi PW 4 Sumer Singh. He was accompanied by Dayal Singh and Bahadur Singh, all of whom arrested him. The Investigation Officer proceeded to the spot. He was accompanied by Dayal Singh and Bahadur Singh, all of whom arrested him. The Investigation Officer proceeded to the spot. He recovered a knife suspected to be stained with human blood from the house of Sabu Singh and after carrying out necessary investigation prosecuted the appellant Balbir Singh as well as his mother Smt. Viran in the court of Munsiff Magistrate First Class, Hanumangarh who committed both the accused for trial to the court of Additional Sessions Judge No. 2. Sri Ganganagar. 2. Both the accused denied their complicity in the alleged murder of Sabu Singh. The learned Additional Sessions Judge No. 2, Sri Ganganagar by bis judgment dated 10th August, 1970 acquitted Smt. Viran of the offence under section 302 read with section 109 IPC but convicted the appellant under section 302 IPC and sentenced him to imprisonment for life and a fine of Rs. 10/- only. 3. We have heard Dr. S.S. Bhandawat, Amicus Curiae on behalf of the appellant. He has urged that PW 1 Labh Singh on whom reliance has been placed by the learned Additional Sessions Judge is not a reliable witness. He has also argued in the alternative that it is proved on the record that the deceased Sabu Singh under the effect of liquor began to throttle Smt. Viran and getting a genuine apprehension that Sabu Singh may put Smt. Viran to death, the appellant Balbir Singh in order to save his mother, took up a knife lying nearby and caused only one injury to Sabu Singh. His contention is that the act of Balbir Singh fell within the general exception contained in section 100 IPC. 4. In our opinion, the guilt has been brought home to the accused-appellant beyond reasonable doubt PW I Labh Singh has not a boy of good character. He has further stated that there used to be frequent quarrel between Sabu Singh on the one hand and Smt. Viran and Balbir Singh on the other. He goes on to state that on the day of occurrence in the evening at about 8 pm. He has further stated that there used to be frequent quarrel between Sabu Singh on the one hand and Smt. Viran and Balbir Singh on the other. He goes on to state that on the day of occurrence in the evening at about 8 pm. when he was returning from the field to his house, he heard cried coming from the house of Sabu Singh and when he entered the house of Sabu Singh he saw Balbir Singh armed with a knife and in his presence Balbir Singh struck a blow with a knife right in the chest of Sabu Singh. He has further stated that the blade of the knife was 6" long. Dayal Singh, Ranjha Singh, Bahadur Singh and Latekan Singh are also alleged to have come to the spot. The witness has deposed that he and Dayal Singh caught hold of the accused Balbir Singh and tied him with a rope, and thereafter took him in a Jeep to the Police Station Tibi. The witness has been cross examined at length but nothing has been brought out in his cross examination so as to discredit his testimony. The accused Balbir Singh in his statement under section 342 Cr. P. C. has admitted that he had inflicted an injury with a knife to his father Sabu Singh but his plea is that he was provoked to do so as under the influence of liquor the deceased was throttling his mother Smt. Viran and was swearing that he would not leave her alive. He further states that he tried to rescue his mother but the deceased did not leave her and thus left with no other alternative, he picked up a knife lying nearby and in order to save his mother, struck Sabu Singh with the knife. He has not produced any evidence in support of his defence. A suggestion was made to PW 1 Labh Singh in his cross examination to substantiate the plea of self-defence taken by the accused. Labh Singh has stated that Sabu Singh was not a drunkard, nor was he a man of quarrelsome nature. He has also emphatically denied the suggestion that Sabu Singh was trying to strangulate Smt. Viran. A suggestion was made to PW 1 Labh Singh in his cross examination to substantiate the plea of self-defence taken by the accused. Labh Singh has stated that Sabu Singh was not a drunkard, nor was he a man of quarrelsome nature. He has also emphatically denied the suggestion that Sabu Singh was trying to strangulate Smt. Viran. Learned counsel relied upon the statement of PW 8 Latkan Singh who has stated in the course of his cross examination that when he reached the place of occurrence, some persons who were present there, told him that Balbir Singh had killed Sabu Singh because the latter was throttling Smt. Viran. But he has stated at the same time that he does not remember the names of the persons who had said so. Moreover such a statement even if made by anybody and heard by the witness would only amount to hearsay and as such not admissible in evidence. Learned counsel also relied on the statement of PW 6 Dayal Singh wherein he has stated that Labh Singh had told him that Sabu Singh was trying to throttle Smt. Viran and, therefore, Baibir Singh struck a blow with a knife to Sabu Singh in order to save Smt. Viran, his mother. It is sufficient to point out that Dayal Singh has not been relied upon by the learned Additional Sessions Judge as a witness of truth and, in our opinion, rightly so. He has been declared hostile and was permitted to be cross examined by the prosecution. We have gone through his statement and have also examined the reasoning given by the learned Additional Sessions Judge for not relying upon him. In our opinion, his evidence cannot be used either in favour of the prosecution or against it. At this stage it may also not be irrelevant to point out that the other witness produced by the prosecution namely PW 2 Bahadur Singh has also not been relied upon by the learned Judge as it appears from the prosecution evidence that he arrived at the spot after the event. At this stage it may also not be irrelevant to point out that the other witness produced by the prosecution namely PW 2 Bahadur Singh has also not been relied upon by the learned Judge as it appears from the prosecution evidence that he arrived at the spot after the event. The burden of proving that the case falls under one of the general exceptions contained in the Indian Penal Code lies on the accused under section 105, of the Evidence Act though if is correct that the accused can discharge the same by relying on the circumstances brought out in the prosecution evidence itself. However, as already stated above, there is absolutely no material on record on the basis of which it may be said that the plea of private defence of person of Smt. Viran taken by the accused has been established. 5. The medical evidence shows that the following injuries was found on the person of the deceased Sabu Singh on Post-mortem examination of his body by Dr. R.C. Verma. 1. Incised would 11/2" long 1" gaping and 11/2" deep on the left side of chest anteriority at the level of 3rd interceetal space near left asternal border." The cause of the death according to the evidence of Dr. R.C. Verma, PW 3 who performed the autopsy, was shock due to injury to the vital organs like the lung, left side and heart to the vital organs like the lung, left side and heart caused by a wound in the chest by a sharp weapon. 6. The prosecution evidence shows that it was not an ordinary knife used for household purposes. However, there is no evidence that the accused had come prepared for causing injury to the deceased of such a nature as may be sufficient in the ordinary course of nature to cause death. It is also clear that only one injury was inflicted. May be that the knife was picked up by the accused at the very moment. It also appears that there may have been some sudden quarrel between Smt. Viran and the deceased Sabu Singh which led to the unfortunate incident. In these circumstances it cannot be said that the accused intended to cause the death of Sabu Singh or intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. In these circumstances it cannot be said that the accused intended to cause the death of Sabu Singh or intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. It also cannot be said with any definiteness that he aimed the blow near the heart, looking to the facts and circumstances of the case the proper inference to be drawn from the act of the accused was that by inflicting an injury with a knife on the chest, he must have intended to cause such bodily injury to the deceased as was likely to cause death. The offence, therefore falls under section 304 Part I, IPC. Regard being had to the provisions of Section 428 Cr. P.C., the accused has been in jail since 4th August, 1969 and has thereby served a term of imprisonment for a little more than six years and consequently we are of opinion that the ends of justice will be adequately served by sentencing him to the term of imprisonment already undergone. 7. In the result, we party allow this appeal and convert the conviction of the accused under section 302 IPC to one under section 304 Part 1, IPC and reduce the sentence to the term of imprisonment already undergone. He shall be released forthwith, if not required in connection with any other case. *******