JUDGMENT 1. - This is an appeal by accused Brij Mohan against the judgment of the learned Sessions Judge, Bharatpur, dated April 24, 1976, convicting the appellant under section 302, IPC and sentencing him to imprisonment for life. 2. But briefly, the prosecution case is that the deceased victim Laxman Singh alias Lachcho aged about 25 years, was the son of PW 1 Girdhar Singh, brother of PW 2 Nihal Singh and the class friend of PW 4 Gopal Singh. The appellant also belongs to the deceased's family in some distance. The deceased as well as the appellant were operating tea stalls side by side Putaida Kumar Gate of the city of Bharatpur, as shown in site plan Ex.P 2. Since their stalls were situate in the same vicinity, it gave rise to business rivalry between them. The appellant wanted to dislodge the deceased from his stall to take unlawful possession over it. This led to disputes between the families of the deceased and the appellant. In the evening of 17-6-75 PW 1 Girdhar Singh, PW 2 Nihal Singh and some other members of their family made an assault on Ram Swarup and Prem Singh who are real brothers of the accused and caused injuries to them. It is alleged that this beating annoyed the appellant. At about 6 00 a.m. on 18-6-75 the deceased Lachcho went to his tea stall. The accused, accompanied with his father Ramswar up, brothers Prem Singh and Padam Singh also reached the tea stall at that time. They caught hold of Lachcho and felled him down. Accused Brij Mohan was armed with a knife. He inflicted a blow with it in the left waist of Lachcho. Prem Singh who had a lathi struck a blow with it to Nihal Singh. Ram Swarup gave a teeth bite on his left hand. Lachcho and others raised cries, hearing which PW 6 Kishorilal, PW 4 Gopal Singh, PW 5 Gajiram, PW 6 Mohan Singh and many other persons rushed to the spot. Before they could intervene, the appellant and his companions managed to run away. There was profuse bleeding from the knife wound of Lachcho and he was immediately taken in a bus to the Government hospital. PW 1 Girdhar Singh went to the police station and presented written report Ex. P I of the occurrence. Before they could intervene, the appellant and his companions managed to run away. There was profuse bleeding from the knife wound of Lachcho and he was immediately taken in a bus to the Government hospital. PW 1 Girdhar Singh went to the police station and presented written report Ex. P I of the occurrence. Lachcho did not survive and succumbed to the injuries in the way while he was being taken in the bus to the hospital. The police, on FIR Ex. P 1, registered a case u/s 307 and 324 IPC. Later on due to the death of Lachcho, section 302 1PC was added during investigation. The Station House Officer, Shri Narayanlal Seni, PW 8, arrived on the spot and inspected the site. He, thereafter went to the Government Hospital, Bharatpur, where the dead body of Lachcho was lying. He prepared the inquest of his dead body. The post-mortem examination of the victim's dead body was conducted on the same day by Medical Jurist Dr. K.L. Sharma, PW 9. The doctor noticed the following injuries on the victim's dead body. External-Incised wound (stab wound) 31/2" x 1" deep beyond thorasic wall. Horizontal in direction in line of the inter spaces situated in the left mid axillary plane on the fourth rib space. It was broader towards anterior axillary border. The middle part communicating thorasic cavity in depth." Internal-A cut in the olura 1" long on the left side in mid-axillary plane on the fourth space. 3. The doctor was of the opinion that the injury was caused by some shape edged weapon. The injury was ante-mortem in nature and of a fresh duration. In the opinion of Dr. Sharma, the cause of death of Lachcho was hemorrhage and shock following the stab wound in the chest. The post-mortem examination report prepared by him is Ex. P 25. The accused and his companions were arrested. In consequence of the information furnished by accused Brij Mohan. on 1-7-75, knife. Article 1 was recovered. In consequence of the information furnished by accused Prem Singh one lathi was recovered. On the completion of the investigation, the police presented a challan against the appellant and three other persons Ramswarup, Prem Singh and Padam Singh, in the court of Munsif-cum-Judicial Magistrate, Rharatpur, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge frames, charges under section 302. On the completion of the investigation, the police presented a challan against the appellant and three other persons Ramswarup, Prem Singh and Padam Singh, in the court of Munsif-cum-Judicial Magistrate, Rharatpur, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge frames, charges under section 302. 323 and 324 IPC against the appellant Brij Mohan and under section 324, 323/34 and 302/34 IPC against the remaining three. The accused pleaded not guilty and claimed to be tried. Three of them, namely, Ramswarup Prem Singh and Padam Singh denied their presence on the spot and their complicity in the commission of the murder of Lachcho Accused Brij Mohan put a counter story in his statement under Section 313 Cr PC. According to him, the deceased and his father Girdhar Singh, his brother Nihal Singh and Hari Singh came to him at his tea stall and made an assault on him. The deceased Lachcho had a knife while the other had lathies. He was severally beaten with lathies. The deceased Lachcho took out the knife and wanted to millet an injury to him with it. In order to save himself, he grappled with Lachcho and it was in this process of grapplings that Lachcho received the knife injury in his waist. In support of its case the prosecution examined 9 witnesses and filed come documents. In defence the accused examined two witnesses. On the conclusion of trial the learned Sessions Judge found no incriminating material as against the three accused Ramswarup, Prern Singh and Padam Singh. They were, therefore acquitted of the offences they were charged with. The Sessions Judge found the prosecution case substantially proved against the appellant Brij Mohan. He was consequently convicted and sentenced s mentioned at the vary outset Aggrieved against his conviction accused Brij Mohan has come up in appeal. 4. We have heard Mr. Doongar Singh. learned counsel for the appellant and Mr. Niyajuddin Khan, learned Public Prosecutor, for the State. We have also gone through the case file carefully. 5. Mr. Doongar Singh did not challenge the finding of the trial court that the accused Brij Mohan (appellant) inflicted an injury to the deceased victim with a knife. The authorship of the wound causing the death of Lachcho was thus not assailed before us. The submission of Mr. We have also gone through the case file carefully. 5. Mr. Doongar Singh did not challenge the finding of the trial court that the accused Brij Mohan (appellant) inflicted an injury to the deceased victim with a knife. The authorship of the wound causing the death of Lachcho was thus not assailed before us. The submission of Mr. Doongar Singh is that the trial court crept into an error in its conclusion as regards the nature of offence made out against the appellant. It was argued that it is a case of single blow. The accused belongs to the family of the deceased victim. In the previous eve ting the father and brothers of the appellant were assaulted and belaboured by the deceased victim and the member of his family. This annoyed the appellant. The prosecution evidence pointed out that there was a grappling between the deceased and the appellant. The deceased had hurled abuse on the appellant. None of the prosecution witness whose testimony has been found reliable, have stated as to how the quarrel started between the decease.i and the appellant. The genesis of the occurrence is. thus, not known. In this back ground as in this context of circumstances, the intention to cause death, cannot be imputed to the appellant. The learned Sessions Judge was in error in taking the case under clause (3) of section 300 IPC. It was urged that the offence made out does not fall within any four clauses of section 300 IPC. The offence does not travel beyond Part II of section 304, IPC. The appellant, should have been, therefore, convicted under section 304 Part II and not u/s 302 IPC. In support of his contention reliance was placed on some decisions of Supreme Court to which we shall mike reference later on. 6. It was on the other hand contended by the learned Public Prosecutor that the injury inflicted to the the deceased victim Lachcho, as per medical evidence, was sufficient in the ordinary course of nature to cause death. The accused was, therefore, rightly convicted under section 302 IPC. We have taken the respective submissions into consideration. 7. Before proceeding further, we may mention that the prosecution had examined six eye witnesses, each of whom had claimed to have seen the incident. The learned Sessions Judge disregarded the testimony of PW 1 Girdhar Singh and PW 2 Nihal Singh. The accused was, therefore, rightly convicted under section 302 IPC. We have taken the respective submissions into consideration. 7. Before proceeding further, we may mention that the prosecution had examined six eye witnesses, each of whom had claimed to have seen the incident. The learned Sessions Judge disregarded the testimony of PW 1 Girdhar Singh and PW 2 Nihal Singh. According to the learned Sessions Judge these two persons had not seen the incident and they arrived on the spot only after the injury was inflicted to the deceased victim by the appellant. He however, accepted the testimony of PW 3 Kishorilal, PW 4 Gopal Singh PW 5 Gajiram and PW 6 Mohan Singh as credit-worthy and reliable. These four eye witnesses have categorically stated that PW 1 Girdhar Singh and PW 2 Nihal Singh were not present when the injury was inflicted to the deceased victim by the appellant. Having gone through the record, the finding of the Sessions Judge that PW 1 Girdhar Singh and PW 2 Nihal Singh had not seen the incident appears to be correct. 8. We have carefully gone through the statements of the remaining four witnesses Kishorilal, Gopal Singh, Gajiram and Mohan Singh. Though their names have not been mentioned in the FIR Ex.P. 1, that is no reason to dis-credit them. PW 3 Kishorilal admitted in his cross-examination that the deceased Lachcho was hurling abuses on the appellant. He further admitted that the deceased victim and the appellant grappled with each other PW 5 Gajiram admitted that the deceased victim and the appellant were grappling with each other and it was during this grappling that the accused inflicted the knife injury to Lachcho. Same facts were admitted in cross-examination by PW 6 Mohan Singh. We stated that the deceased victim Lachcho and the appellant were quarrelling with each other. The appellant wanted to forcibly take away the deceased towards the hotel of one Jhandu. Both of them were grappling with each other. It was during this grappling that the appellant inflicted the knife injury to the deceased victim. PW 4 Gopal Singh, as stated earlier, is a close friend of the deceased victim. He, of course, stated that the appellant made two or three attempts to inflict knife injury to the deceased victim but he is not supported by the other independent witnesses on this count. 9. PW 4 Gopal Singh, as stated earlier, is a close friend of the deceased victim. He, of course, stated that the appellant made two or three attempts to inflict knife injury to the deceased victim but he is not supported by the other independent witnesses on this count. 9. The evidence of these eye witnesses, thus, shows that a quarrel took place between the deceased victim and the appellant. Both of them grappled with each other and it was during this process of grappling that the appellant inflicted an injury to the deceased victim with knife. 10. It is a case of single injury. As stated earlier,the appellant and the deceased victim belong to the same family though in same distance degrees. The genesis of the quarrel, as to how the incident started, is not before us. In these circumstances, we are unable to agree with the learned Sessions Judge that the appellant intended to cause the death of Lachcho. 11. In Jagtar Singh vs. State of Punjab, 1983 SCC (Cr.) 459 the scope of clause firstly and thirdly of section 300, IPC were discussed. It was a case of single knife blow inflicted to the victim in the chest. The injury caused to the victim was sufficient in the ordinary course of nature to cause death, as per medical evidence. Their Lordships held that in the given circumstances, it cannot be said that the accused intended to cause death or he could be imputed the intention to cause that injury which has proved fatal. The accused had given one blow with a knife. There was no evidence on record to show that the appellant intended to cause that particular injury which is said to have caused the death. The appellant could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. Their Lordships were, therefore, of the opinion that no case under section 302. IPC was made out as none of the clauses of section 300, IPC was applicable. The offence was taken to be that under II Part of section 304, IPC. It was observed that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. IPC was made out as none of the clauses of section 300, IPC was applicable. The offence was taken to be that under II Part of section 304, IPC. It was observed that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Their Lordships made a reference to Jagrup Singh vs. State of Haryana, 1981 SCC (Cr.) 768 , Randhir Singh vs. State of Punjab, 1981 SCC (Cr.) 856 and Kulwant Rai vs. State of Punjab, 1981 SCC (Cr.) 826 . We need not make reference to these decisions. 12. Reverting to the instant case in hand, as discussed above, the appellant had no intention to cause the death of Lachcho. It was in the presence of grappling that he inflicted the knife injury to him. We are, therefore, of the opinion that the accused should have been convicted under section 304 Part II IPC. 13. The appellant has remained in custody from 18-6-75 to 28.7-78 i.e. to say nearly for three years, one month and some days. He was a young man of 25 years in age at the time of commission of the offence. The occurrence took place in 1975 and we are hearing this appeal in 1986. It does not appear proper to re-send him to jail after such a long interval. It would not be, therefore, improper to award him the sentence of imprisonment for the period of detention already undergone by him. 14. In the result, we partly allow the appeal of accused Brij Mohan. His conviction and sentence under section 302 IPC are set aside and instead he is convicted under section 304 Part II IPC. He is sentenced to rigorous imprisonment for the period of detention already undergone by him during investigation enquiry, trial and thereafter. The appellant is already on bail. He need not surrender. His bail bonds shall stand cancelled. 15. The appeal shall stand accordingly disposed of.Appeal Partly Allowed. *******