JUDGMENT 1. - By his judgment dated October 26, 1979 the learned Sessions Judge, Churu convicted the appellant Rahim Bux under section 302, I. P. C. and sentenced him to imprisonment for the life with a fine of Rs. 500/, in default of the payment of fine to further under go three months rigorous imprisonment. 2. The prosecution case is short and simple. The deceased-victim Safi was the 1 son-in law of the accused-appellant and was living in village Irrara district Churu. The accused is a resident of village Ladnu district Nagaur. The wife of the accused passed away some months before the incident. As such he was living alone. His other children namely PW 4 Kumari Manju and PW 7 Aslam and others were living with the deceased victim in his village. The deceased-victim got the sons and daughters of the accused betrothed. The accused at first consented to these betrothals but later on showed his resentment and asked the deceased-victim as to why he had betrothed his sons and daughters. At about 12-00 in the noon of March 17, 1979 the accused came from his town Ladnu to village Irrara and picked up some quarrel with the deceased-victim Safi. Both of them grappled with each other. The accused had a Gadiya (stick) and struck two blows with it to Safi. Both of them picked f up quarrel and went out of the house of the deceased-victim. There the accused took out a knife and struck one blow with it on the left forearm of Safi and struck one more blow with his knife on Safi's right chest. Safi fell down. There war profuse bleeding from his wounds. He did not survive and succumbed to the injuries then and there. The occurrence was seen by PW 1 Rahim Bux, PW 2 Ramsingh, PW 3 Kasim Khan, PW 4 Kumari Manju and P.W 7 Aslam. Rahim Bux (PW If went to Police Station, Sahdwa and verbally lodged report Ex. P. 1 of the occurrence, at about 4 30 P M. on the same day. The Station House Officer Radhey Sbyam (PW 10) arrived on the spot, prepared the inquest report of the victim's dead body and seized the blood-smeared soil from there. The accused was arrested at the spot. He was wearing a shirt which was stained with blood. P. 1 of the occurrence, at about 4 30 P M. on the same day. The Station House Officer Radhey Sbyam (PW 10) arrived on the spot, prepared the inquest report of the victim's dead body and seized the blood-smeared soil from there. The accused was arrested at the spot. He was wearing a shirt which was stained with blood. It was also seized and sealed The Gadiya and the knife were also seized and sealed. The postmortem examination report of the victim's dead body was conducted on March 19, 1979 by PW 9 Dr. Yogendra Singh, the then Medical Officer In charge, Primary Health Centre,'" Sandwa. He noticed the following injuries on the victim's dead body : 1. Stab wound right chest wall on the level of 3rd intercostal space about 1.25'' above and lateral to the nipple. Size 1.25" X 1.25" downwards. 2. Lacerated wound in the middle of left eye brow oblique in direction, Size 0-5" X 0 25" X 0 25". 3. Incised wound left forearm 2 5" above the wrist joint, oblique in direction ante laterally placed. Size 2" X 025" X 0 25". 4. Contusion right arm in the middle antero-laterally. Size 2" X 1". 3. In the opinion of Dr. Singh, the cause of death was respiratory failure as i result of severe profuse hemorrhage in the lungs. He was also of the opinion that injury No. 1 of the victim was sufficient in the ordinary course of nature to cans the death. The post mortem examination report prepared by him is Ex. P. 10.1 The victim's clothes which were stained with blood were also seized and sealed. To seized articles were sent for chemical examination. Human blood was detected on the shirt of the accused and the clothes of the deceased-victim. On the completion C of investigation, the police submitted a challan against the accused in the Court of Chief Judicial Magistrate, Churu, who committed the case for trial to the Court Sessions. The learned Sessions Judge framed a charge under section 302, I.P.C against the accused, to which he pleaded not guilty and claimed absolute innocent In support of its case, the prosecution examined 10 witnesses and filed some documents In defence, the accused adduced no evidence. According to him, a false case has been manufactured against him. The learned Sessions Judge framed a charge under section 302, I.P.C against the accused, to which he pleaded not guilty and claimed absolute innocent In support of its case, the prosecution examined 10 witnesses and filed some documents In defence, the accused adduced no evidence. According to him, a false case has been manufactured against him. It may be mentioned that he did not raise at) specific plea in the defence. He also did not adduce any evidence. On the conclusion of trial the learned Sessions Judge found the charge duly brought home to this accused. The accused was consequently convicted and sentenced as mentioned the very out set. Hence this appeal. 4. We have heard the learned amicus curiae and the learned Public Prosecutor We have also gone through the case file carefully. 5. In assailing the conviction of the accused, the first contention raised by learned amicus curiae is that the court below crept into an error in putting relied on the testimony of the five ocular witnesses of the incident. It was argued PW/1 Rahim Bux was the uncle of the deceased-victim. PW 4 Manju and PW Aslam though children of the accused, were living with the deceased-victim. They were there free inclined in favour of the victim. In view of these circumstances their evidence should not have been relied upon, in convicting the appellant. In reply the learned Public Prosecutor submitted that PW 3 Ku. Manju and PW 7 Aslam are the real daughter and son of the accused. It is, therefore, difficult to imagine that they would falsely depose against him merely because they were living I with the deceased-victim. We have given our thoughtful consideration to the contentions. 6. Admittedly, the prosecution has examined five witnesses, each of whom has claimed to have seen the occurrence They are PW 1 Rahim Bux, PW 2 Ram Singh, PW 3 Kasim Khan, PW 4 Ku. Manju and PW 7 Aslam. Each of them stated that the accused had inflicted two injuries with knife (Article 4) to the deceased-victim. The first injury was caused to the left forearm while the second injury was inflicted on the right side of the chest. The occurrence took place outside the house of the deceased-victim. The presence of PW 4 Ku. Manju and PW 7 Aslam is not open to any challenge. The first injury was caused to the left forearm while the second injury was inflicted on the right side of the chest. The occurrence took place outside the house of the deceased-victim. The presence of PW 4 Ku. Manju and PW 7 Aslam is not open to any challenge. PW 2 Ramsingh and PW 3 Kasim Khan were passing that way when the incident took place. Rahim Bux (PW 1) came there a little while later. All of them had seen the accused inflicting two blows with knife to the deceased-victim. We are unable to conceive that the son and daughter of the accused would falsely depose against him for no apparent reasons. We are also unable to conceive that the remaining three witnesses would state against the accused for no apparent reason. The learned Judge of the trial Court accepted the evidence of these witnesses as true and on a careful scrutiny of their statements we are unable to take a view different from him. The finding of the learned Sessions Judge that the accused struck two blows with a knife one on the left forearm and the other on the right side of the chest of the victim-appears quite correct and no reasons are there to up-set that finding. 7. It was next argued by the learned amicus curiae that the offence made out is not covered by section 302, I.P.C. but is covered by Section 304 Part II I.P.C. It was argued that the deceased-victim was the real son-in-law of the accused. Knife (Article 5) is not a formidable weapon but is a pon-knife generally used for cutting of the vegetables. There was grappling between the deceased-victim and the accused. None of the prosecution witnesses has stated as to how the quarrel started between them. In these circumstances, contended by the learned amicus curiae, the offence does not fall within any of the Clauses of Section 300, IPC. Reliance in support of the contention was placed on Kulwant Ram v. Punjab (A.I.R. 1982 S. C. 126) . None of the prosecution witnesses has stated as to how the quarrel started between them. In these circumstances, contended by the learned amicus curiae, the offence does not fall within any of the Clauses of Section 300, IPC. Reliance in support of the contention was placed on Kulwant Ram v. Punjab (A.I.R. 1982 S. C. 126) . In reply, the learned Public Prosecutor submitted that as per medical evidence, injury No. 1 was on the chest of the victim and was sufficient in the ordinary course of nature to cause the death The case is, therefore, covered by Clause 3rdly of Section 300 and the offence made out is that 4 Section 302, I. P. C. Reliance in support of the contention was placed on Basanta v. the State of Maharashtra (A.I.R. 1983 S.C. 361) . We have given our anxious consideration to the contentions. 8. Admittedly, the victim was the real son-in-law of the accused. The children of the accused were living with the deceased-victim. The motive alleged is too remote and cannot provoke the accused to commit the murder of his son-in-law. There is no evidence to suggest as to how the quarrel took place between the accused and the deceased-victim. In these circumstance we are unable to conceive that the accused had any intention to commit the murder of his real son-in-law. In Kulwant Ram's case, the accused struck one blow with a dagger in the epigastrium region of the victim. The injury was found sufficient in the ordinary course of nature to cause the death. But there was no premeditation. There was a litigation between the deceased-victim and the accused. In those circumstances their lordships were of r the view that Clause 3rdly of Section 300, I.P.C. would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. Their lordships further held that in circumstances what can be said is that the accused inflicted an injury which he knew to be likely to cause the death and the case would accordingly fall under section 304 Part II, I.P.C. In Basanta's case, the matter was otherwise. The nature the injury was that of stab wound on the chest while which resulted in the fractured 6th rib and injured the heart and lungs. The nature the injury was that of stab wound on the chest while which resulted in the fractured 6th rib and injured the heart and lungs. According to Doctor the injury was inflicted with great force and in the most cruel manner. In those circumstances the case was taken to be that under section 302, IPC. The facts in Basanta's case are, thus, materially different from those in the instant case. 9. For the reasons stated above, we are of the opinion that the case made out against the accused is covered by Section 304 Part IF, and not under section 302, I.P.C. 10. In the result, we partly allow the appeal of accused Rahim Bux. His conviction and sentence under section 302 are set-aside and instead he is convicted under section 304 Part II, I.P.C. and is sentenced to ten years rigorous imprisonment. With this modification the appeal shall stand accordingly disposed of. *******