JUDGMENT 1. - The appellant Subekhan, who was convicted under S. 302, I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- and in default of payment of fine, to further suffer rigorous imprisonment for six months by the Sessions Judge, Bikaner on January 24, 1977, has filed this appeal. 2. An oral report was made on August 26, 1976 by P.W. 6 Ismail Khan at the Police Station Gangashahar at 2 p.m. which was written by the Station House Officer, Gahgashahar and it is Ex. 2. It was said by PW 6 Ismail Khan (complainant) that about two days before the accused Sube Khan resident of village Gajner, came to the house of his father-in-law Allabux; that he came there to take his wife Mst. Luni and that in the morning of August 26, 1976, the accused Subekhan asked his father-in-law Allabux that his wife Mst Luni should be sent with him. Allabux and his brother Mohammed Khan told him that Mst. Luni cannot be sent to village Gajner on that day. It has been alleged that Mohammed Khan abused Subekhan and that annoyed him and he left Bachhasar for his village Gajner, at about 10 a.m. While leaving Allabux's house, the accused is said to have told Mohammed Khan that he shall take revenge of his insult. Deceased Hattukhan son of Mohammed Khan aged about 14 years had left with the herd of sheep in the morning for grazing them in the fields. About two hours before the oral information, PW 5 Nasirkhan told PW 6 Ismail Khan (complainant) that the cattle was grazing in the field of Allabux and Hattukhan son of Mohammed Khan, Mst. Bhanwari daughter of Sah Mohammed Khan, Khetu daughter of Allabux and Batul daughter of Rahim Khan were looking after the cattle in the field. The accused Subekhan is said to have met Hattukhan in the field of Allabux while he was on his way to Gajner. He caught hold of Hattukhan and took him to a distance and then inflicted injuries by knife in his stomach and on his chest. While he was inflicting the injuries, PW 4 Mst. Bhanwari, Batul and Khatu were looking at the incident and they started weeping and crying. He caught hold of Hattukhan and took him to a distance and then inflicted injuries by knife in his stomach and on his chest. While he was inflicting the injuries, PW 4 Mst. Bhanwari, Batul and Khatu were looking at the incident and they started weeping and crying. On hearing their cries, PW 5 Nasirihan who was present in his field came to the field of Allabux & saw the accused inflicting injuries on Hattukhan. He found that Hattukhan had already died and on seeing him, the accused ran away towards Gajner. PW 5 Nasir Khan came to the village and told PW 6 Ismail Khan about the incident. On knowing about the incident, PW 6 Ismail Khan went to the Police Station, Gangashahar to lodge the report. A case under s. 302 IPC was registered against the accused. PW 10 Srawanram (SHO) informed PW 9 Kalyan Mal Sharma. the Deputy Superintendent of Police. PW 10 Srawanram alongwith the complainant and PW 9 Kalyan Mal Sharma left for village Bachhasar where the incident had taken place. A letter (Ex. P 9) dated August 26, 1979 was sent by the Station House Officer to the Medical Officer for conducting the autopsy of the dead body PW 10 Kalyan Mal Sharma took charge of the investigation. Photographs of the dead body were taken and side plan Ex. P 16 and site memo Ex. P 17 were prepared. Memos of dead body, Ex. P. 18 and Ex. P 19 were also prepared. The blood-stained sand and ordinary sand were taken in possession and memos Ex. P 20 and Ex. P 21 were prepared. The post-mortem examination of the dead body of Hattu Khan was done by PW 3 Dr. Umesh Kumar Mahobia and the clothes of the deceased were taken in possession and memo Ex. P 23 was prepared. At about 10.40 p.m. the accused was arrested at Gajner and his arrest memo Ex. P 22 was prepared. As the Dhoti, which the accused was wearing at the time of the incident, had some spots of blood on it, it was also taken in possession and was sealed. Memo Ex. P 24 was prepared. The accused was interrogated on August 27, 1976. During interrogation, he gave information in regard to the knife, which he is said to have used at the time of commission of the offence. Memo Ex. P 24 was prepared. The accused was interrogated on August 27, 1976. During interrogation, he gave information in regard to the knife, which he is said to have used at the time of commission of the offence. At his instance, from his house, the knife was recovered. Memo Ex. P 25 regarding knife was prepared- Ex. P 13 is the recovery memo of the knife. Ex. p 14 is the plan of the house from which the knife was recovered. The blood stained knife and other articles were sent for chemical examination to the Chemical Examiner and the Serologist. The reports received from them are Ex. P 26 and Ex. P 27. After completing the investigation a challan was filed against the accused Subekhan on September 13, 1976 in the court of Chief Judicial Magistrate, Bikaner. As the case was under section 302, IPC which was exclusively triable by the Sessions Court, the accused was committed to the court of Sessions Judge, Bikaner by his order dated September 20, 1976. Charge was framed against the accused on November 2, 1976. The accused pleaded not guilty and claimed to be tried. The prosecution examined PW 1 Prabhu Singh, PW 2 Bhanwarlal, PW 3 Dr. Umesh Kumar Mahobia, PW 4 Mst. Bhanwari, PW 5 Nasir Khan, PW 6 Ismail Khan, PW 7 Sukhdeo, PW 8 Allabux, PW 9 Deputy Superintendent of Police Kalyanmal Sharma and PW 10 Srawankumar, Station House Officer, Police Station Gangashahar. Thereafter, the statement of the accused under S. 313, Cr. PC was was recorded In his statement, the accused denined to have gone to the village Bachhasar to bring his wife and stated that he has been falsely implicated in this case. The learned Sessions Judge, by his judgment dated January 24, 1977, found the accused guilty under S. 302, IPC and sentenced him to the imprisonment for life and a fine of Rs. 500/- and in default of payment of fine, to further undergo rigorous imprisonment of six months. Against the conviction and sentence, the accused appellant has filed this appeal on February 25, 1977. 3. We have heard Mr Niranjan Gaur learned counsel for the accused-appellant and Mr. Niyajjuddin Khan, Public Prosecutor and have carefully considered the judgment under appeal as well as the record. 4. The learned Sessions Judge has relied on the statements of P W. 4 Mst. 3. We have heard Mr Niranjan Gaur learned counsel for the accused-appellant and Mr. Niyajjuddin Khan, Public Prosecutor and have carefully considered the judgment under appeal as well as the record. 4. The learned Sessions Judge has relied on the statements of P W. 4 Mst. Bhanwari and P.W. 6 Nasir Khan. He has opined that from the statements of the aforesaid two witnesses, it has been proved beyond any doubt that the accused See Khan has committed murder of Hattu Khan. 5. The learned Sessions Judge has also recorded the following findings: (1) that the recovery of the knife create suspicion and becomes doubtful. According to the learned Sessions Judge, the recovery of the knife was not of any consequence as from the report of the Serologist, it is clear that the blood stains on the knife were disintegrated and as such no positive report could be given. (2) that no importance can be attached to the recovery of 'Dhoti' for the reason that the result of the blood grouping test was inconclusive in respect of it and as such it could not be said that the blood stains on it were that of the deceased. (3) that the motive of the murder has not been established. 6. Learned counsel for the appellant pressed the following points for our consideration: (1) that the story as contained in the First Information Report Ex. P 12 has not been established at the trial and that the statements of P.W. 4 Mst. Dhanwari and P.W. 5 Nasir Khan on whose testimony the learned Sessions Judge has relied, cannot be said to be unimpeachable; (2) that as motive of the murder has been held not to have been proved, it would be legitimate to infer that offence of murder was not committed by the accused; (3) that at the most from the facts which have been held to have been established by the Sessions Judge, offence under section 304, Part II I.P.C. as made out and not under section 302, I.P.C. 7. According to the prosecution, there were four eye-witnesses, who have been the occurrence. They are P W. 4 Mst. Bhanwari, P W. 5 Nasir Khan, Khatu and Batul. Khatu and Batul have not been examined for the reason that they were only four years old, as deposed by P.W. 4 Mst. Bhanwari. According to the prosecution, there were four eye-witnesses, who have been the occurrence. They are P W. 4 Mst. Bhanwari, P W. 5 Nasir Khan, Khatu and Batul. Khatu and Batul have not been examined for the reason that they were only four years old, as deposed by P.W. 4 Mst. Bhanwari. Learned counsel for the appellant, of course, submitted that for failure to produce Khatu and Batul in support of the prosecution story, who are material witnesses being eye witnesses, an advrese inference should be drawn against the prosecution P W. 4 Mst Bhanwari has categorically stated that Khatu and Batul were four years of age at the time of occurrence No. crosse-examination was directed by the learned counsel for the accused to shake this part of the statement of the witnesses. As Khatu and Batul were only four years of age at the time of occurrence, no adverse inference can be drawn against the prosecution for its failure to produce them. P.W. 4 Mst. Bhanwari was 12-13 years of age at the time of her deposition on January 18, 1977. It may be recalled here that the occurrance is of August 26. 1976 Deceased Hattu Khan was P W. 4 Mst. Bhanwari's uncle's son. She has stated that five to six month before, she had coma to thy field of Allabux for grazing sheep. Allabux is her uncle and she was accompanied by Batul, Khatu and Hattu Khan. The accused Sub. khan came from their village.When the accused came there, they were all sitting on the boundary wall. When the accused came there he had a knife in his hand and after coming there, he caught hold of the hand of Hattu Khan and took him beyond the boundary wall.The accused started inflicting injuries by knife on Hattu Khan. When she saw the accused Subekhan inflicting injuries, she along with Batul and Khatu started weeping and on hearing their cries, her uncle Nasir Khan came there from his field. Nasir Khan's field is next to the field of Allabux. She has further deposed that Nasir Khan also saw the accused inflicting the injuries and he shouted at the accused and on 1 caring it, the accused ran away towards the field of Kanaram. The field of Kanaram is close to the field of Allabux on the other side. P.W. 4 Mst. She has further deposed that Nasir Khan also saw the accused inflicting the injuries and he shouted at the accused and on 1 caring it, the accused ran away towards the field of Kanaram. The field of Kanaram is close to the field of Allabux on the other side. P.W. 4 Mst. Bhanwari also stated that P W. 6 Nasir Khan went behind the accused but he could not be caught that Nasir Khan then came back to Hattukhan and it was found by him that Hattu Khan has died. P.W. 6 Nasir Khan asked her and Batul and Khatu to stay there and he went to village Bachhasar, from where Huradi and Halim came there. Thereafter, P.W. 4 Mst. Bhanwari Batul and Khatu went from there to their village. 8. The statement of P.W. 4 Mst. Bhanwari was criticized by the learned counsel for the appellant on the ground that the witness was only 12-13 years old and she being a child witness, her statement should not be believed. He submitted that she has stated in her statement (Ex.D1) which was recorded during investigation that the accused came to the place of occurrence with a knife in his hand, but she does not know as to why it was not written it. On the basis of certain extract from her statement, namely, that P.W. 6 Nasir Khan was only 15 steps away from there; that she does not know as to how many years back the accused was married with Mst Luni; that she does not understand the terms, year and month; that she did not talk about the incident to any one and that she does not know to offer the prayers (Namaz), it was contended by the learned counsel for the accused-appellant that she is not a reliable witness We have read her statement with care. P.W. 5 Nasir Khan had come to the place of occurrence on hearing the cries of P W. 4 Mst. Bhanwari, Batul and Khatu. On seeing that Hattu Khan was lying on the ground and that the accused had run away towards the field of Kanaram and finding that Hattu Khan was dead, he asked Mst Bhanwari, Khatu and Batul to stay there and he went to the village. P.W. 4 Mst. Bhanwari, Batul and Khatu. On seeing that Hattu Khan was lying on the ground and that the accused had run away towards the field of Kanaram and finding that Hattu Khan was dead, he asked Mst Bhanwari, Khatu and Batul to stay there and he went to the village. P.W. 4 Mst. Bhanwari was knowing that P.W. 5 Nasir Khan had gone to the village after seeing that the accused bad inflicted injuries with his knife, on Hattu Khan and that the accused had run away, it was not at all necessary for her to have talked over to any person regarding the incident. P.W. 4 Mst. Bhanwari was only 12-13 years of age at that time. On seeing that he accused was inflicting injuries with his knife on Hattukhan, she along with the other two girls, started weeping. This shows Mst. Bhanwari and the other two girls became terrified. In these circumstances,much cannot be made out from the fact that P.W 4 Mst. Bhanwari is not trustworthy, for, her conduct is unnatural as she had not narrrted about the occurance to anyone. From the above extracts, the testimony of Mst. Bianwari cannot be said to be unreliable. It is correct that there are certain omissions in her statement Ex. D 1 which was recorded during the investigation, but, in our opinion, the story narrated by her during the trial finds support and corroboration from the statement of P.W. 5 Nasir Khan. P.W. 4 Mst Bhanwari possessed matured understanding as is evident from her statement and, therefore, she is credible. In Tehalsingh v. State of Punjab, AIR 1979 SC 1347 , reliance was Placed on the testimony of a boy of 13 years coming from a rural area on the ground that he had matured understanding. Nothing was shown from he statement of P.W. 4 Mst. Bhanwari that there are any signs or indications of tutoring. After carefully scrutinising the evidence of P.W. 4 Mst. Bhanwari, we agree with the learned Sessions Judge that there is impress of truth in her statement and there is no obstacle of any kind whatsoever in the way of accepting her evidence. She has withstood the cross-examination on all material details and it does not suffer from any infirmity. The learned Sessions Judge was, therefore, right when he found that P.W. 4 Mst. She has withstood the cross-examination on all material details and it does not suffer from any infirmity. The learned Sessions Judge was, therefore, right when he found that P.W. 4 Mst. Bhanwari was Present at the time of occurrence and the accused had taken away Hattu Khan after catching hold of his hand about 10 steps a way from where the witness with two other girls was sitting and then inflicted injuries on his (Hattukhan's) person. Normally he Court should look for corroboration while appreciating the statement of a child witness by way of caution or prudence and not as rule of law. In the case on hand, the statement of P.W. 4 Mst. Bhanwari finds support and corroboration from the testimony of P.W. 5 Nasir Khan. 9. P.W. 5 Nasir Khan has stated that in the month of Asoj about five months back from the date of his statement at about 10 AM , when he was in the field (the field of Allabux is next to his field), P.W. 4 Mst. Bhanwari, Batul and Khatu and Hattu Khan were grazing the sheep and that they were sitting on the boundary of Allabux's field, that he, at that time heard noise of weaping and, therefore, ran towards the girls. He has further deposed that when he reached there, he saw accused Subekhan sitting towards the feet of Hattu Khan who was inflicting injuries by a knife; that Hattu Khan was lying on the ground and on seeing this. he cried from a distance of 15 to 20 steps and on hearing his cries the accused ran away towards the field of Kanaram. The field of Kanaram is next to the field of Allabux, It has also been deposed by this witness that he ran behind the accused for a distance but he could not catch hold of him; that the knife by which the accused had inflicted the injuries on Hattu Khan was also taken away by the accused while he was running; that he came back to Hattukhan and found that he was already dead, that the blood was coming out of the body of Hattukhan and the clothes of Hattu Khan were also soaked in blood. There upon the witness asked P W. 4 Mst Bhanwari, and other two girls to stay there and other two girls to stay there and went to the village and after reaching there he narrated about the occurrence to P.W.6 Ismail Khan, who met him on the way while he was going to the village; that both of them went to the village and from there P.W 6 Ismail Khan was sent to he Police Station to lodge the report & that after reaching the village he sent Halima & Muradi to the place of occurrence. According to this witness, the police came at about 3-4 P.M. & in his presence Investigating Officer prepared the site plan and other memos. The clothes of the deceased were taken in possession after the post-mortem examination In answer to some questions in the cross-examination,the witness has deposed that he had no enmity with the father of of Sube Khan; that the accused was married about 2 to 3 years back and that after marriage the accused had come to his father-in-law's house two to three times. The cries were heard by the witness that Hattu Khan is being killed. The place of occurrence was 10 to 15 steps away from the slope. The testimony of this witness was assailed by the learned counsel for the accused-appellant on the ground that he is said to have seen the accused while he was inflicting the injuries, but while Subekhan was running, at that time back of Subekhan was towards him and so, the accused Subekhan could not be identified by this witness, for he has not sect, the face of the accused. In our opinion, this is no good ground for discarding the testimony of P W. 5 Nasir Khan. It has been established from his statement that the accused Subekhan was very well known to him, as he is son-in-law of his brother and had occasion to meet him before the occurrence. The occurrence had taken place during the day and it cannot be said that it was not possible for the witness to have recognised the accused Subekhan even from the back. Our attention was also drawn to his statement Ex. The occurrence had taken place during the day and it cannot be said that it was not possible for the witness to have recognised the accused Subekhan even from the back. Our attention was also drawn to his statement Ex. D2, which was recorded by the Police during investigation, wherein the witness had stated." eSaus xkao es tkdj bZlekby [kka dks ;g ckr crk nh tks Fkkuk 'kgj esa fjiksVZ djus pyk x;kA "In the statement during trial he has deposed that he had narrated about the occurrence to P.W. 6 Ismail Khan, who had met him in his field, while he was going to the village; that he apprised Kanaram about it; that Kanaram had met him at 2.30 p.m. and that he had told him about the matter. These details had been stated by P.W. 4 Mst. Bhanwari and therefore, the absence of the aforesaid details in Ex D2. In our opinion, does not make this statement unreliable. We are satisfied that the witness had seen the accused inflicting injuries on the body of Hattu Khan and when the raised cries the accused had run away along with his knife. We may mention here that on being told about the incident by P.W.5 Nasir Khan, P.W 6 Ismail Khan took his cycle from he village and then went to the Police Station, Gangashehar and, there he gave the oral information,which was reduced in writing by P.W. 10 Srawan Ram, Station House Officer, Gangashahar. The contents of the report wets passed on the information which was given to him by P.W. 5 Nasir Khan. P.W. 6 Ismail Khan has also deposed that be came back to the village along with the police party and thereafter, necessary formalities were completed. P.W.10 Srawan Ram, who was Station House Officer in Gangashahar at the relevant time, has also been examined and he has corroborated the statement of P.W. 6 Ismail Khan. He deposed that P.W. 6 Ismail Khan gave oral information which was reduced in writing and it is Ex. P12; that P-W. 6 Ismail Khan had put his thumb impression below Ex. P12 and on its basis a case under S. 302, I.P.C. v as registered. 10. He deposed that P.W. 6 Ismail Khan gave oral information which was reduced in writing and it is Ex. P12; that P-W. 6 Ismail Khan had put his thumb impression below Ex. P12 and on its basis a case under S. 302, I.P.C. v as registered. 10. It was contended by the learned counsel for the appellant that Kanaram and Rahim Khan,who are neighbours of the field of Allabux have not been examined by the prosecution as according to him, they ought to have been examined for they were present at the time of occurrence in their fields. The learned Sessions Judge has stated in his judgment that he had perused the case-diary. From the statement of the witnesses, which were in the case-diary; it is clear that they were not present in their fields at the time of occurrence. There was no need to examine Kanaram and Rahim Khan as witnesses because they were not the eye-witnesses. 11. From the statement of P.W. 4 Mst. Bhanwari and P.W. 5 Nasir Khan, in our opinion, the learned Sessions Judge was right in holding that they had witnessed the accused inflicting injuries on the person of deceased Hattu Khan and then run away from the place of occurrence. The testimony of the aforesaid witnesses is trustworthy and reliable. It may be stated here that as regards recovery of knife, (weapon of offence) the learned Sessions Judge, on the basis of the material on record, agreed with the defence that the fact um of recovery of knife has not been fully proved because P.W. 7 Sukhdev has stated that when he went with the police party in connection with the recovery of the knife, it was lying in the chowk of the room and it was not hidden anywhere; that the knife was not stained with the blood; and that the knife appeared to be an old one which had not been used for a long time. The finding recorded by the learned Sessions Judge in regard to the recovery of the knife was rightly not challenged by the learned Public Prosecutor and, therefore, we do not consider it necessary to examine this finding. The finding recorded by the learned Sessions Judge in regard to the recovery of the knife was rightly not challenged by the learned Public Prosecutor and, therefore, we do not consider it necessary to examine this finding. The learned Session Judge did not think it proper to attach importance to the recovery of the 'Dhoti' of the accused because the result of the blood grouping test was inconclusive and, therefore, it could not be said that the blood stains on the 'Dhoti' were that of the deceased, The conclusion reached by the learned Sessions Judge in regard to recovery of 'Dhoti' was also not challenged by the learned Public Prosecutor before us. 12. Next, it was submitted by the learned counsel that the learned Sessions Judge has found that the prosecution has failed to prove the motive of the murder and as there was no motive, the evidence bearing on the guilt of the absence should not be believed. It is well settled that where evidence against the accused is clear, cogent, reliable and trust worthy, it cannot be held that it is unsupportable merely because the prosecution has failed to prove the motive. In the absence of proof of the motive, the only effect is that the other evidence of the prosecution relating to the guilt of accused should be very closely examined. We have already scrutinised the statements of the eye-witnesses and we are satisfied that these statements are not infirm and can safely be relied on in proof of the guilt of the accused appellant. The argument that the prosecution had failed to establish the motive of crime and, therefore, it should be held that guilt has not been brought home to the accused, cannot be accepted. We have no hesitation in rejecting it. 13. Now the only point that remains to be examined, which was canvassed by the learned counsel for the accused-appellant is that in any case offence under s, 302, IPC is not made out and the accused can only be held liable for the offence under s. 304 Part I Reliance was placed on Kagan Singh v. State of Rajasthan, 1980 Cr.L.R. (Raj.) 534. 14. PW 3 Dr. Umesh Kumar Mahobia conducted the autopsy of the dead-body of Hattu Khan at the request of the Station House Officer, Gangashahar. He noticed the following external injuries on the body of the deceased. "1. 14. PW 3 Dr. Umesh Kumar Mahobia conducted the autopsy of the dead-body of Hattu Khan at the request of the Station House Officer, Gangashahar. He noticed the following external injuries on the body of the deceased. "1. Incised wound of 3/4 cm x 1/4 cm bone deep present on the vertex. 2. Stab wound of 2 cm x 1 cm x pulmonary cavity deep obliquely placed 4 cm medial to left nipple, everted eliptical margins in left fourth intercostal space. 3. An incised wound l3/4 cm 1 cm bone deep in middle line on upper portion of sternus. 4. An stab wound 3 cm x 1 cm pulmonary cavity deep obliquely placed just right to sternum in 5th right intercostal space with eliptical everted margins. There is a cut of lower margin of right 5th costal cartilage. 5. A stab wound of 3 cm x 1 cm x 5 cm obliquely placed on right subcostal region 6 cm away from mid-line. 6 A stab wound of 3 cm x 1 cm pulmonary cavity deep obliquely placed on 5th intercostal space in posterior oxillary line." From his statement it is clear that on dissection he found extra vasation of blood in scalp around injury No. 1; lower margin of 5th right cartilage cut and extra vasation of blood under injuries Nos. 2, 3, 4 and 6 thorax. He also round a cut of 1.5 cm x 1/2 cm in pleurone of the left lung and there was evidence of stab would of 11/2 cm 1/2 cm x 1 cm. on anterior aspect of left upper lobe just beneath injury No. 2. There was also an evidence of semi-clotted blood about 300 c.c in left pleurae cavity. The left lung was collapsed. There was evidence of a cut of 21/2 cm x 1/2 cm on pleurae just beneath injury No. 4 and there was also evidence of cut 21/2 cm x 1/2 cm on right lateral aspect just beneath injury No. 6. He deposed that there was evidence of a stab wound 2 cm x 1/2 cm x 2 cm on anterior aspect of right middle lobe just beneath injury No. 4. He also found evidence of stab wound 2 cm x 1/2 cm x 2 cm on lateral aspect of right. middle lobe just beneath injury No. 6. There was about 500 cc semi-clotted blood and lung was collapsed. He also found evidence of stab wound 2 cm x 1/2 cm x 2 cm on lateral aspect of right. middle lobe just beneath injury No. 6. There was about 500 cc semi-clotted blood and lung was collapsed. He also observed a stab wound of 3 cm x 1/2 cm x 4 cm on right lobe of liver on anterior aspect below injury No. 5. According to him, the cause of death was haemorrhage and shock due to all injuries and that they were sufficient to cause death in the ordinary course of nature. He frillier opined that injuries Nos. 2, 4, 5 and 6 were individually sufficient to cause death in the ordinary course of nature and that these injuries could be caused by knife or sharp weapon. He has proved the post-mortem report Ex. P 10 prepared by him. 15. Having regard to the parts of the body on which the injuries were inflicted and also the nature of the injuries, we are of opinion that the act of the accused clearly falls within the purview of close (3) of s. 300, IPC because the injuries intended to be inflicted were sufficient in the ordinary course of nature to cause death. Reference may be made to Bharta v. State of Rajasthan, 1980 Cr.L.R. (Raj.) 476. . Kesar Singh's case (Supra) is distinguishable on facts and cannot be availed of by the learned counsel for the accused. The case of the accused does not fall under s. 304 Part 1, IPC. We are unable to accept the contention that the offence under s. 302, IPC is not made out. The accused appellant has rightly been convicted for the offence of murder. 16. We find no merit in this appeal and it is, accordingly, dismissed.Appeal dismissed. *******