S. S. SHARMA, J. ( 1 ) IN Sessions Trial No. 45 of 1980, the present appellant Bahadur Singh and two others, namely, Balbir Singh and Khuman Singh were tried for having committed the murder of one Gyan Prakash on 11-4-1980 at village Kharwai. The Sessions Judge by his judgment dated 20-5- 1981 acquitted Khuman Singh and Balbir Singh, but convicted appellant Bahadur Singh for an offence under section 302 Indian Penal Code and sentenced him to rigorous imprisonment for life. It is against that conviction and sentence that the present appeal has been filed ( 2 ) THE prosecution case briefly stated is that on 11-4-1980 there was a FALDAN ceremony at the house of one Girdhari in village Kharwai. At that time records were being played on the loudspeaker by Shamsheer (P. W. 4 ). It was Shamsheer who had taken the loud-speaker to this village Kharwai. It was at about 10. 00 to 10. 30 P. M. that accused Khuman Singh came there and told deceased Gyan Prakash to stop playing of the records on the loud-speaker. At this Gyan Prakash took the loud-speaker from the house of Girdhari to his house and started playing records from there on the loud-speaker. Khuman Singh then went to Gyan Prakash's house and told him to stop playing of the records on the Loud-speaker. At this, deceased Gyan Prakash told him that the records were being played on the loud-speaker at his house and so what objection can he have in this behalf. With that discussion in the back-ground, a quarrel took place between Khuman Singh and Gyan Prakash. On a shout being raised by Khuman Singh, acquitted accused Balbir Singh also reached there. It is said that Balbir Singh and Khuman Singh had beaten Gyan Prakash and brought the latter out of his room. Thereafter, appellant Bahadur Singh came from towards his house with a BALLAM and gave a BALLAM blow to Gyan Prakash causing injury near his neck. At this Gyan Prakash fell down and died. This assault by Bahadur Singh is said to have taken place at about 11. 00 to 11. 30 P. M. A written report Ex. P. 1, the scribe of which is Radheshyam (P. W. 3) was submitted to A. S. I. Surendra Nath Pandey (P. W. 5) in village Kharwai. At this Gyan Prakash fell down and died. This assault by Bahadur Singh is said to have taken place at about 11. 00 to 11. 30 P. M. A written report Ex. P. 1, the scribe of which is Radheshyam (P. W. 3) was submitted to A. S. I. Surendra Nath Pandey (P. W. 5) in village Kharwai. The motor - stand of village Kharwai is about 100 to 150 paces from the spot where the incident took place (paragraph 5 of evidence of (P. W. 5) S. N. Pandey ). The A S T. held the inquest Ex. P. 10 and seized blood stained and unstained earth besides other articles. The dead body of Gyan Prakash was forwarded to the hospital for postmortem examination. ( 3 ) DR. G. K. Sharma (P. W. 2) had on 12-4-1983 performed the examination and he found a stab wound 3 X 1 X 5 deep at left supraclavicular region parallel to left clavical, extending deep downwards in the left thorasic cavity. The left lung was visible through the wound. Resides this injury, there was an abrasion at the left shoulder, a lacerated wound at the left parietal region two contusion and other multiple abrasions. According to him the aforesaid stab wound was sufficient to cause death as the left lung was injured. The cause of death was syncope due to haemorrhage. As stated by Doctor Sharma in his cross-examination, the father of the deceased had told him that the deceased belonged to Bhopal. The PANCHAYATNAMA (Ex. p. 10) of the dead body mentions that no relatives of the deceased were present. The post-mortem report Ex. p. 3 also mentions that the dead body was identified by Awadhnarayan who was the father of the deceased. ( 4 ) APPELLANT Bahadur Singh in his examination pleaded false implication. ( 5 ) FROM Ex. p. 4 it appears that a report with regard to this incident was also made by a constable on 14-4-1980 and a charge-sheet Ex. D. 5 had been submitted against Kashiram, Mahesh, Laxminarayan and Mst. Gomtibai. In this charge-sheet, the three accused, namely, Bahadur Singh, Khuman Singh and Balbir Singh and others have been joined as witnesses. Some injury certificates relating to examination of the present appellant and the two acquitted accused have also been filed. Dr. R. P. Tiwari (D. W. 1) was examined in defence. Gomtibai. In this charge-sheet, the three accused, namely, Bahadur Singh, Khuman Singh and Balbir Singh and others have been joined as witnesses. Some injury certificates relating to examination of the present appellant and the two acquitted accused have also been filed. Dr. R. P. Tiwari (D. W. 1) was examined in defence. According to him, appellant Bahadur Singh had a defused swelling over the frontal region of forehead besides a bruise, an abrasion and an incised wound. This incised wound was on the left radial side of the forearm. These injuries were simple in nature. Khuman Singh was though complaining of injury and pain, but no external or internal injury was found. Balbir Singh had two abrasions, which were simple in nature. One Mohan Singh was also examined by him who also had simple injuries. With regard to injuries to Bahadur Singh, his opinion was that two of them could be self inflicted and even accidental, but the fourth injury i. e. the incised wound could not be self inflicted. ( 6 ) KASHIRAM (P. W. 1) and Radheshyam (P. W. 3) have fully supported the prosecution story. Shamsheer (P. W. 4) has partly supported the prosecution story, but has stated that deceased Gyan Prakash was drunk since the morning. He further stated that Gyan Prakash also had a DANDA and had been assaulting the other two persons who also in their turn had been assaulting Gyan Prakash. He did not, however, state about appellant Bahadur having inflicted the BALLAM blow to the deceased. The Public Prosecutor, with the permission of the trial judge cross-examined this witness. He was confronted with his statement to the police. ( 7 ) FROM the evidence of Kashiram (P. W. 1) and Radheshyam (P. W. 3), it clearly emerges that a quarrel had first taken place between Khuman Singh and Gyan Prakash in which Balbir Singh had also joined later. It was subsequent thereto that appellant Bahadur Singh suddenly came with a BALLAM and gave the fatal blow to the deceased. This conclusion, which is based on the consistent evidence of Kashiram (P. W. 1), and Radheshyam (P. W. 3) was not challenged by the learned counsel for the appellant. This conclusion further finds support from the fact that the deceased apart from the stab wound had other injuries also. This conclusion, which is based on the consistent evidence of Kashiram (P. W. 1), and Radheshyam (P. W. 3) was not challenged by the learned counsel for the appellant. This conclusion further finds support from the fact that the deceased apart from the stab wound had other injuries also. Even acquitted accused, namely, Balbir Singh also had injuries and even Khuman Singh had been complaining of pain on abdomen and injury. Besides these two, one Mohan Singh is also said to have received injury. The injuries to appellant Bahadur Singh were very minor and the non-explanation of these injuries does not in any manner adversely affect the prosecution story. Nothing has been brought out in the evidence of these witnesses, namely, Kashiram and Radheshyam so as to probabilise that the accused or the appellant had acted in exercise of right of private defence. The cross-examination of Kashiram was on the lines that he with his associates who are the co-accused in the other case, referred to above, had quarrelled with Balbir Singh, Khuman Singh, Bahadur Singh and Mohan. These suggestions have been denied by the witnesses. Some other suggestions to show the enmity of these witnesses with appellant Bahadur Singh were also made, but in our opinion, those reasons in themselves are in the circumstances insufficient to reject the evidence of Kashiram (P. W. 1 ). That apart, there also is evidence of Radheshyam (P. W. 3), which lends assurance to the testimony of Kashiram and fully implicates the appellant. We are accordingly satisfied that the learned counsel for the appellant did not rightly chaijenge the finding about appellant Bahadur Singh being the author of the stab wound on the body of the deceased. ( 8 ) THE main contention of the learned counsel for the appellant, however, was that in the circumstances, the offence against the appellant would not be that of murder. On the prosecutions own case, appellant Bahadur Singh had come later. A quarrel was already going on between the deceased and others. It was at this stage that the appellant had inflicted BALLAM blow on the deceased. Neither of the two eyewitnesses state that the appellant had given any further blow or had caused any other injury to the deceased. In Gokul Parashram Patel v. State of Maharashtra there was an internal injury on the left clavicle. It was at this stage that the appellant had inflicted BALLAM blow on the deceased. Neither of the two eyewitnesses state that the appellant had given any further blow or had caused any other injury to the deceased. In Gokul Parashram Patel v. State of Maharashtra there was an internal injury on the left clavicle. The doctor who had performed the autopsy had opined that the damage caused as a result of this injury was sufficient in the ordinary course of nature to cause death. In that context their Lordships observed as follows: The solitary blow given by the appellant to the deceased was on the left clavicle -a non- vital part-and it would be too much to say that the appellant knew that the superior venacava would be cut as a result of that wound. Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of that type. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstance. This was precisely the view taken in Harjinder Singh v. Delhi Administration, by Sikri, J. , and in Laxman Kalu Nikalje v. State of Maharashtra, by Hidayatullah, C. J. Their Lordships had considered the decision in Virsa Singh v. State of Punjab. It was observed that the said fatal injury cannot be said to have been intended by the appellant. ( 9 ) IN our opinion, the circumstances, in the instant case are some what similar, in the sense that the appellant on coming with the BALLAM inflicted a blow on a non-vital part and he cannot be taken to have intended that the wound would extend downwards in the left thorasic cavity. On the facts and in the circumstances, as they are, it would be hazardous to say that the appellant intended to cause this particular injury. In any event, the appellant is entitled to a benefit of doubt on this question. The offence, therefore, would clearly fall under Section 304 Part II of Indian Penal Code and would not be that of murder punishable under Section 302 Indian Penal Code. See also Shanker v. State of Madhya Pradesh. ( 10 ) CONSEQUENTLY, this appeal is partly allowed. The offence, therefore, would clearly fall under Section 304 Part II of Indian Penal Code and would not be that of murder punishable under Section 302 Indian Penal Code. See also Shanker v. State of Madhya Pradesh. ( 10 ) CONSEQUENTLY, this appeal is partly allowed. The conviction and sentence of the appellant under section 302 Indian Penal Code are set aside and instead he is convicted under Section 304 Part II Indian Penal Code. We had heard the learned counsel for the appellant even on the question of sentence. In our opinion, five years rigorous imprisonment for the offence under Section 304 Part II would in the circumstances, be adequate and the appellant is sentenced accordingly. The appellant shall be entitled to a set-off as provided under Section 428 of the Code of Criminal Procedure. Appeal partly allowed. .