R. N. Aggarwal, J. ( 1 ) ON 11/05/1979 at about 2. 30 p. m. anoccurrence took place near the Khirka (tabela) of Moonga in the area ofmotia Khan in which, it is alleged, Kalu alias Kalua caught the deceasedyasin from behind and Bhagwat exhorted that Yasin be finished and uponwhich Jaswant took out a Chhuri from the dub and gave a blow on the rightthigh of Yasin which proved fatal. ( 2 ) ALL the said three accused were tried on the charge under Section302 read with Section 34 of the Indian Penal Code. The learned Additionalsessions Judge who tried the case found all the accused guilty of the offencecharged with and sentenced each one of them to imprisonment for life. Against their conviction and sentence the accused have preferred separateappeals to this Court. This judgment shall dispose of all the appeals. ( 3 ) BRIEFLY, the case for the prosecution is that the deceased Yasinhad kept 22 goats at the Khirka of Moonga (P. W. 1 ). On 11/05/1979at about 2. 30 p. m. Yasin had gone to the Khirka for taking the goats. Yasin was feeding the goats in the tabela under the tin shed when Kalu,jaswant and Bhagwat came there. Kalu lifted one goat. Yasin objected tothe lifting of the goat by Kalu and said "kia YE TUMRE BAP KA MALHA, JO ESE UTHA KE LE JA RAHE HO". ( 4 ) ALL the accused retorted that they would teach him a lesson thereand then and they started giving slaps and fist blows to Yasin. Thereafter,it is alleged, Kalu caught hold of Yasin from behind and Bhagwat exhortedthat Yasin should be finished upon which Jaswant took out a chhuri fromhis dub and attacked Yasin aiming the blow on the abdomen. Yasin steppedback and the blow fell on the right thigh of Yasin. On receipt of the injuryyasin fell down. All the accused ran away. Jaswant threatened whilebrandishing the knife that whoever came near him would be killed. ( 5 ) THE occurrence was witnessed by Public Witness 9 Mohd. Iqbal, brother ofthe deceased, Public Witness 10 Sajaudin and Public Witness 11 Chiragudin. Public Witness 9 and P. W. 10 removed Yasin to a hospital where he was declared dead. The occurrencewas reported to the police. ( 5 ) THE occurrence was witnessed by Public Witness 9 Mohd. Iqbal, brother ofthe deceased, Public Witness 10 Sajaudin and Public Witness 11 Chiragudin. Public Witness 9 and P. W. 10 removed Yasin to a hospital where he was declared dead. The occurrencewas reported to the police. The clothes of Public Witness 9 and Public Witness 10 had gotstained with blood and the investigating officer took the clothes of P. Ws. 9and 10 into possession. Public Witness 9 made the statement Ex. Public Witness 4/c beforea. S. I. Kanwal Singh who with his endorsement Ex. Public Witness 4/d sent the rukaex. Public Witness 4/c to the police station for formal registration of the case. ( 6 ) DR. A. Maridha (P. W. 15) performed post-mortem on the deadbody of Mohd. Yasin. The doctor on examination of the body found thefollowing injuries:- (1) Abrasion 1 x over the back of right elbow. (2) Incised stab wound 1 x with gaping in the middle inner frontof right thigh and was placed obliquely. The upper end of thiswound was 7" below the right anterior superior iliac spine andlower end of this wound was 7" above the mid point of right kneejoint. Both margins of the wound were clean cut and bothangles of the would were acutely cut. The lower outer marginshowed bevelling leak backward and the wound was directedupward, backward and inward. (3) Abrasion 3/10" x 2/10" over the middle front of right thigh 9"below the right anterior superior iliac spine and 2" outer to. injury No. 2. (4) Abrasion 3/10" X 2/10" over the upper front of the left knee capregion. (5) Superficial incised wound 3/4" X 1/10" X epidemics of the skindeep placed obliquely over the middle inner part of the left hand. No other external injury was seen over the chest and abdomen asnoted in the death summary which was brought to me. " ( 7 ) THE doctor found that injury No. 2 on the right thigh had beencaused by a sharp double edged weapon and injuries 1, 3 and 4 by bluntforce. The doctor gave the opinion that injury No. 2 was sufficient to causedeath in the ordinary course of nature. ( 8 ) ALL the accused denied the prosecution case and pleaded that theyarc innocent. ( 9 ) PUBLIC Witness 9 Mohd. The doctor gave the opinion that injury No. 2 was sufficient to causedeath in the ordinary course of nature. ( 8 ) ALL the accused denied the prosecution case and pleaded that theyarc innocent. ( 9 ) PUBLIC Witness 9 Mohd. Iqbal, Public Witness 10 Sajaudin and Public Witness 11 Chiragudinare the witnesses to the occurrence. We have carefully perused their state"ments and we are of the view that they are reliable and truthful witnesses. The learned counsel for the appellants Kalu and Bhagwat contended thaton the evidence brought on the record it is not safe to sustain the convictionof the said appellants with the aid of Section 34 of the Indian Penal Code. The counsel contended that, it appears, during a sudden quarrel Jaswant hadtaken out the knife from the dub and given a single knife blow to thedeceased Yasin. ( 10 ) WE are inclined to accept the contention of Mrs. Ahlawat onbehalf of Kalu and Mr. Sharma on behalf of Bhagwat that on the evidenceproduced on the record it would not be safe to convict Kalu and Bhagwatwith the aid of Section 34 of the Indian Penal Code. ( 11 ) PUBLIC Witness 9 gave evidence that Kalu caught hold of Yasin frombehind and Bhagwat exhorted that Yasin be finished and on that Jaswant tool: out a chhuri from his dub and attacked Yasin. In cross-examinationp. W. 9 deposed that Jaswant after taking out the chhuri had given the blowinstantaneously. ( 12 ) PUBLIC Witness 10 gave evidence that Kalu had instantaneously stabbedafter taking out the knife (we think that during the course of recording ofevidence that name of Kalu has been wrongly typed for Jaswant ). Public Witness 11testified that while giving the fist blows the knife was taken out and hit onthe person of Yasin. ( 13 ) WE find from the evidence given by P. Ws. 9, 10 and 11 that firstthere was a quarrel between the deceased and the accused and thereafter thedeceased and some of the accused had grappled and in all probability it wasduring the course of grappling that Jaswant had taken out the knife andgiven a blow with it to Yasin. ( 14 ) IN the above view of the evidence we feel that it would not besafe to hold that there existed a common intention between the three accusedto murder or to cause any other grievous injury to Yasin. ( 14 ) IN the above view of the evidence we feel that it would not besafe to hold that there existed a common intention between the three accusedto murder or to cause any other grievous injury to Yasin. ( 15 ) FOR the reasons stated we would allow the appeals filed by Kaluand Bhagwat Sarup and acquit them. The said appellants are on bail andthey need not surrender to their bail bonds. ( 16 ) ON behalf of Jaswant accused Mr. Jaitley contended that there was no premeditation and the knife was used by Jaswant accused during thequarrel in the heat of the moment. The counsel contended that the offencecommitted by Jaswant would fall under part II of Section 304 Indian Penal Code We arcinclined to agree in this contention of the counsel. ( 17 ) THE prosecution evidence shows that the occurrence had originated suddenly over a petty matter and it was in the course of the quarrel thatjaswant had taken out the knife and given a single blow on the right thighof the deceased. There could be no doubt that there was no premeditationand Jaswant had acted in the heat of the moment upon a sudden quarrel. In the circumstances of this case, we are of the view that it would not besafe to hold that Jaswant intended to cause the death of Mohd. Yasin. Theabrasions on the body of Yasin do suggest that there was grappling beforethe knife injury was given. ( 18 ) FOR the reasons stated, we set aside the conviction of Jaswantappellant on the charge under Section 302 of the Indian Penal Code andinstead convict him of the offence under Section 304 part II of the Indianpenal Code, and sentence him to rigorous imprisonment for 7 years. Theappeal by Jaswant is allowed to the extend indicated above.