JUDGMENT 1. - Appellant Banwari Lal was tried for the charge under section 302 I.P.C. by the Sessions Judge, Churu. By the judgement dated April 23, 1980, the learned Sessions Judge held the appellant guilty for the aforesaid charge and sentenced him to imprisonment for life and a fine of Rs. 250/- in default to undergo two months R. I. 2. Briefly stated, the facts of the case are as under:- The quarrel between the children of two brothers and the intervention of one of them resulted into the death of Ilayachi wife of Chirag (P.W. 4) at the hands of appellant Banwari on June 24, 1979. Chirag (P.W. 4) and Banwari are real brothers and were residing in the samegawadi. On June 24,1979 Chirag had gone for sewing at the house of his neighbour Karn Singh (P.W. 3). Ilayachi, wife of Chirag went there to ask her husband for tea. Chirags son went there and told his father that his uncle, meaning thereby the accused-appellant, would beat him. Chirag did not believe it and told the boy that he would not do so and might be simply threatening. Ilayachi left the house of Karnisingh. A little while thereafter Chirag and Karnisingh heard noise outside the houses and rushed to the place where Ilayachi was. They saw the appellant with a knife in his hand and lying down in injured condition. Ilayachi was taken inside her house. She succumbed to the injuries sustained by her after half and hour. Chirag went to Police Station, Rajgarh and lodged the report Ex. P/3. Case under section 302 I.P.C. was registered against the appellant by Deeparam. A.S.I. Deeparam (P.W. 11) went to the site and conducted necessary investigation. Dr. Megh Singh (P.W. 5), Medical Officer, Rajgarh conducted the autopsy over the dead body and noted following injury:- 1. Stab wound ⅝" x 1/2" thoracic cavity deep. It is on upper and outer aspect of left breast. It is 2" above from left nipple. It is oblique in direction. The edges are everted and clean cut. The lower angle of wound is more sharp than the upper angle. The fatty tissues are protruding out through the wound. On passing the through the wound it is going upto 5" deep into thoracic cavity obliquely and anteriorly. 3. In the opinion of the Doctor Ilayachi had died due to shock and internal haemorrhage. The lower angle of wound is more sharp than the upper angle. The fatty tissues are protruding out through the wound. On passing the through the wound it is going upto 5" deep into thoracic cavity obliquely and anteriorly. 3. In the opinion of the Doctor Ilayachi had died due to shock and internal haemorrhage. The postmortem examination report is Ex.P/6. 4. On June 25, 1979, A.S.I. Deeparam arrested appellant vide memo Ex. P/16. On June 30, 1979, the appellant got recovered dagger Article 5 from his house which was taken in possession vide memo Ex. P/8. Prosecution examined 10 witnesses in all to substantiate its case. 5. One defence witness was examined to substantiate the contention of the appellant that the deceased and her mother-in-law used to quarrel. The learned Sessions Judge, placed reliance on the testimony of Chirag and Karnisingh and held the appellant guilty for the charge of murder of Ilayachi and passed the judgement under appeal. The appellant in the statement under section 313 of the Code of Criminal Procedure denied the allegations levelled against him and stated that Ilayachi had a quarrel with her mother-in-law i.e. the mother of the appellant and in that quarrel Ilayachi sustained injuries at her own hands and died. He also stated that his brother Chirag and sister-in-law Ilayachi used to quarrel. 6. Feeling dissatisfied by the conviction and sentence Banwari has filed this appeal through the Superintendent, Central Jail, Bikaner. Thereafter, Mr. Doongarsingh filed power on his behalf. 7. We heard Mr. Doongar Singh, learned counsel for the appellant and Mr. L. S. Udawat, learned Public Prosecutor for the State and carefully examined tie record of the case. 8. At the commencement of the arguments Mr. Doongar Singh submitted 'that he does not want to press the appeal on merits rather would challenge the legality of conviction of the appellant for the charge of murder and the sentence warded on that count. According to the learned counsel for the appellant the circumstances of the case, the quarrel between the children of two brothers and the incident taking place on the trivial matter, the charge of murder is not made out. It has been strenuously contended that there was only one injury sustained by the victim Ilayachi and prosecution could not establish by convincing evidence that the nagger recovered vide memo Ex. P/8 was the used by the appellant. It has been strenuously contended that there was only one injury sustained by the victim Ilayachi and prosecution could not establish by convincing evidence that the nagger recovered vide memo Ex. P/8 was the used by the appellant. The size of the weapon which might have been used is also not known. The learned jounsel submitted that in such circumstances, the case at the most would fall within he ambit of Section 304 I.P.C. 9. Mr. L. S. Udawat, learned Public Prosecutor does not dispute the contention that the incident had taken place on a trivial matter but his argument is that looking to the nature of the injury, charge under section 302 I.P.C. stands established. 10. As stated earlier, the cause of the incident was the quarrel between the children of the two brothers. From the statements of Karnisingh (P.W. 3) and Chirag (P.W. 4) it cannot be known as to what had initially transpired between the appellant and his sister-in-law Ilayachi. The statements of these two witnesses as a whole, do not convince us that they had actually seen the appellant iflicting injury to Ilayachi. However, from their evidence this much is clear that the appellant was having a sharp edged weapon in his hand which the witnesses have slated to be a dagger. They had also seen him running with that weapon from the victim. It is not the case of the prosecution that the two brothers viz. Chirag and appellant Banwari had any previous enmity. There is no material to suggest that the deceased and the appellant were not happy with each other. The evidence regarding the origin of the quarrel is almost lacking because there is only the statement of Chirag that his son had come and informed that his uncle would tat him. The word used by the boy according to Chirag is marega. The word translated into english are killing as well as beating. Weapon of offence according to the prosecution was the dagger recovered at the instance of the appellant. Chirag has stated that after the incident appellant took to heals and he had ten him for the first time two days thereafter when he was brought by the Police order custody for the recovery of the dagger. Weapon of offence according to the prosecution was the dagger recovered at the instance of the appellant. Chirag has stated that after the incident appellant took to heals and he had ten him for the first time two days thereafter when he was brought by the Police order custody for the recovery of the dagger. The houses of the two brothers are Whether there was any opportunity for the appellant to hide the dagger the house is not known from the evidence. Even if the prosecution case about this dagger Article 5 the weapon of offence is not believed still from the evidence of the two witnesses viz. Karnisingh and Chirag it is established that the appellant was having sharp edged weapon in his hand and its blade was visible. 11. Dr. Meghsingh (P.W. 5) has supported the prosecution case on the joint that the injury sustained by Ilayachi was with a sharp edged weapon. The Doctor has also stated that the injuries sustained by deceased Ilayachi could have been caused by dagger Article 5. In view of the facts and circumstances of the case i.e. relations between the parties not being inimical, the incident having taken place on a trivial matter i.e. quarrel amongst the children, only one injury having been accused by the appellant we are inclined to hold that it is not a case in which the appellant might have caused the injury to his sister-in-law with intention to commit her murder. The case of the appellant therefore, falls within the ambit of Section 304 I.P.C. 12. The next point for consideration would be as to whether the act of the appellant is liable for conviction under Part I or Part II of Section 304 I.P.C. The stab found was thoracic cavity deep. On it was found penetrating the thorax through breast tissues and left 4th intercostal space 2" to the left of the sternum causing a wound 7" wide in the middle of lateral aspect of pericardium and left ventricle. The nature of the injury and the part of the body which was affected leads to the conclusion that the assailant had an intention if not of committing murder at least to cause such bodily injury as was likely to cause death. The nature of the injury and the part of the body which was affected leads to the conclusion that the assailant had an intention if not of committing murder at least to cause such bodily injury as was likely to cause death. The case of the appellant therefore, falls within the ambit of Section 304 Part I, I.P.C. and he is liable to be punished for that offence. 13. In view of the facts and circumstances of the case we consider eight years R.I. and a fine of Rs. 200/- an adequate punishment. 14. Consequently, the appeal is partly allowed. The conviction and the sentence of the appellant for the offence under section 302 I.P.C. is converted to one under section 304 Part I I.P.C. The conviction and sentence for the offence under section 302 I.P.C. are set aside. The appellant is instead of convicted for the offence under section 304 Part I, I.P.C. and sentenced to eight years R.I. and a fine of Rs. 200/-, in default of payment of fine to undergo three months R.I.Appeal partly allowed. *******