JUDGMENT 1. 1. Accused appellant Kesar Dev has been convicted by the learned Sessions Judge, Sikar, under a judgment dated 29-8-1989, for the offence punishable under Section 302 IPC and he has been sentenced to undergo Life Imprisonment and to pay a fine of Rs. 100/- in default, further to undergo simple imprisonment for a period of three months). The imprisonment undergone by the accused appellant has been ordered to be set off out of the sentence awarded to him. 2. Brief facts giving rise to this appeal are that one Kishna Ram, resident of Swami-ki-dhani, had seven sons including Bhagwana Ram (PW 1), Banwari (PW 2), Phoola Ram (PW 4) and Sohan Lal (PW 10). It appears from the perusal of the site plan (Ex. P/5) that the houses of the accused appellant and deceased Kishna Ram, are in the same 'guwadi' (kaccha house). There are some common portions including a common court-yard and there is also a 'khejra' tree being common. Nandlal, who is son of Kesar Dev (accused appellant), on the day of incident i.e. 18th March, 1988, at about 3.30 p.m., had climbed up the 'khejra' tree and was cutting some of its branches The deceased (Kishna Ram) alongwith his two sons, namely, Banwarilal (PW 2) and Phoola Ram (PW 4) was sitting there. The deceased asked Nandlal that the branches had not fully grown up and he should not cut them and so, he asked him to come down the tree. When Nand Lal came down the tree, it is said that the accused appellant who was inside the house came out and asked to the deceased as to how had he asked Nand Lal to come down the tree. There was some exchange of words and the accused appellant went inside his house, returned with a knife and caused injury on the chest of Kishna Ram, as a result of which he died at the spot. Bhagwana Ram (PW 1), son of deceased Kishna Ram, also arrived there and Banwari (PW 2) and Phoola Ram (PW 4) narrated the incident to him. He saw that bis father Kishna Ram was lying dead in the court-yard. He went to the police station Rughnathgarh and lodged the report the (Ex P/1). The police station is six kms. away from the place of incident, and the report Ex. He saw that bis father Kishna Ram was lying dead in the court-yard. He went to the police station Rughnathgarh and lodged the report the (Ex P/1). The police station is six kms. away from the place of incident, and the report Ex. P/1 was lodged at 7.30 p.m. The case was registered and the investigation was set in motion. 3. Dr. J P. Verma (PW 9) conducted autopsy of the dead body of Kishna Ram vide his post-mortem report Ex. P/10 which is an admitted document by the defence. We found that the deceased has incised wound 5 cm" x 1 cm", 2.4" cm, 5" cm lateral to xyphistrum. Direction was towards medial side i.e. left side, and opening the thorax it was found by the doctor that there was 3" cm long cut in right side of chest and Pericardium, and 21/2 cm" cut on left side of heart; and piercing interventiculor septum. He also found that clotted and semi-diluted fluid was also present in thoracic cavity. In the opinion of the doctor, and as per the post-mortem report the deceased died due to heart injury and Haemorrhage leading to syncope. 4. The accused was arrested and on his information a knife (Art. 1) was recovered. From the investigation, the police seized and sealed the blood smeared soil of the spot. The dhoti and bushirt duly stained with human blood were also taken in possession. The knife was recovered from the possession of the accused from a 'aala' inside of his house. They were sent to the Forensic Science Laboratory and it was found that the blood smeared soil, dhoti, bushirt as well as the knife were found to be stained with human blood. 5. We have perused the file so also the judgment of the learned trial Court. 6. The accused was charged under Section 302 IPC and after the close of the evidence of prosecution witnesses, he was examined under Section 313 Cr. PC to explain the circumstances appearing against him in the evidence of the prosecution witnesses but the plea of the accused was a bare denial. He did not examine any witness in defence. The accused said that there was an old enmity and that is why he has been falsely implicated. PC to explain the circumstances appearing against him in the evidence of the prosecution witnesses but the plea of the accused was a bare denial. He did not examine any witness in defence. The accused said that there was an old enmity and that is why he has been falsely implicated. As said earlier, the learned Sessions Judge placed reliance on the evidence of the prosecution and convicted and sentenced the accused appellant as aforesaid. 7. We have heard the learned counsel for the appellant as well as the learned Public Prosecutor who is assisted by the counsel for the complainant and have gone through the evidence on record. 8. The first contention of the learned counsel for the accused appellants is that the two witnesses, namely, Banwari (PW 2) and Phoola Ram (PW 4), in fact, did not witness the occurrence and in all probability, they must have come upon hearing the alarm of deceased Kishna Ram, but because they are the sons of the deceased; they have come forward they cannot be termed as eye witnesses. The learned counsel contends that no reliance can be placed on their testimony. We have gone through their statements and we are unable to agree with the submissions of the learned counsel. It will appear from the site plan (Ex P 5) that the houses of the accused appellant as well as of the deceased were adjacent to each other. As said earlier, the court-yard is common. No doubt, the evidence is that Kishna Ram had constructed a new house about 30 to 50 steps away from the place of occurrence, a few months prior to the occurrence and out of seven sons; most of them including Kishna Ram used to reside in the new house and only Phoola Ram (PW 4) was residing in the old house. But, there is evidence that Kishna Ram used to sleep in the new house in the night and during the day house he used to come to his old house. There can be no doubt as it has not been challenged by the learned counsel for the accused appellant that deceased Kishna Ram died in the old house in the court yard, and therefore, the presence of deceased Kishna Ram at the time of incident in the old house and in the court yard can hardly be disputed. There can be no doubt as it has not been challenged by the learned counsel for the accused appellant that deceased Kishna Ram died in the old house in the court yard, and therefore, the presence of deceased Kishna Ram at the time of incident in the old house and in the court yard can hardly be disputed. That apart, the old and new houses are not far of rather are at a distance of about 30 to 50 steps and, therefore, the presence of deceased Kishna Ram at the time of incident in the old house was natural, but the presence of his two sons, namely, Banwari (PW 2) and Phoola Ram (PW 4) who were inside house at the time of incident, is not proved. 9. We will now proceed to scrutinise the evidence of the above named two witnesses. Upon a perusal of their evidence, it will appear that each of them stated that when Nand Lal S/o Kesar Dev (accused) was upon the 'khejra' tree and was cutting its unrippen branches, the deceased Kishna Ram, an old man, had taken objection of it, because the 'khejra' tree was the joint property of the accused appellant as well as deceased Kishna Ram and he had said that Nand Lal should not cut it. Nand Lal climbed down the tree and said to have gone inside his house, returned with a knife and inflicted injuries on the person of the deceased. 10. The learned counsel for the appellant contended that the very fact that in the site plan blood was found only at point 'A' and not at point 'B', goes to show that Banwari (PW 2) and Phoola Ram (PW 4) actually did not witness the occurrence and came upon the alarm of their father from the house. A look at Ex.P 5 will show that the distance in between point 'A' and point 'B' is not much and it was hardly of four steps. Merely because, blood was not found at point 'B' it cannot be said the presence of witnesses, namely, Banwari (PW 2) and Phoola Ram (PW 4) is doubtful and they could not have witnessed the occurrence. The occurrence is said to have taken place at point 'A' nearby 'khejra' tree. The deceased had fallen near the main gate at point 'B'. The occurrence is said to have taken place at point 'A' nearby 'khejra' tree. The deceased had fallen near the main gate at point 'B'. His clothes were smeared with blood and the blood smeared soil was taken from the spot and, therefore, there cannot be any doubt that the occurrence took place at the place as alleged by the prosecution witnesses. It will appear from the evidence of Banwari (PW 2) as well as Phoola Ram (PW 4) that they were sitting alongwith their father when Nand Lal was on the tree and the deceased asked Nand Lal that he should not cut the unrippen branches of the tree. After having gone through the statements, we are of the opinion that there can be no doubt that they are eye witnesses of the occurrence and had witnessed the occurrence. 11. It has further been contended by the learned counsel for the appellant that each of them stated that the accused appellant had given only a single blow on the chest of the deceased. According to him. a look at the post-mortem report and the statement of Dr. J.P. Verma (PW 9) will show that the possibility that the deceased received one more injury, can not be excluded and, therefore, also the two eye witnesses should not be relied upon because they have not stated that the accused had given one more blow. It will appear from the post-mortem report (Ex.P 10) which is, as said earlier, an admitted document of the defence that there was only one external injury of the size of 5 cm" x 1 cm", 2.4 cm", 5 cm" lateral to xyphesternium and its direction was towards the medial side i.e. left side. Therefore, there was only one external injury and a look at the statement of doctor will show that he was subjected to the lengthy cross-examination and not a single question appears to have been put in the cross-examination that the internal injuries were also found on the body of the accused were the result of two external injuries. A look at the statement of doctor including his cross-examination will show that he has stated that the distance of the incised wound which was found by him was 5 cm" on the heart. He has also stated that the injury was caused on xyphestenium and heart is under it. A look at the statement of doctor including his cross-examination will show that he has stated that the distance of the incised wound which was found by him was 5 cm" on the heart. He has also stated that the injury was caused on xyphestenium and heart is under it. No doubt, at one place he has stated that the injury by knife (Art. 1) could not have been caused but if we look into his entire statement, it will appear that he has said that if the knife hits 5 cm" to the side of strenum, the injury could not have been caused by knife (Art. 1). He stated that if there is some dead body and then the injury is inflicted by knife then it cannot be caused. Dr. G P. Verma again stated that when the injury was inflicted, the deceased was alive and he must have tried to save himself and the force might have been used. In our opinion, other injuries were also as a result of only one external injury and on other internal injury was ever found on the chest. 12. The learned trial Court has placed reliance on the two eye witnesses, namely, Banwari (PW 2) and Phoola Ram (PW-4), and it appears to us that there was no enmity between the deceased and his sons on the one hand and the accused appellant on the other hand. There is no material of any litigation in respect of the land which was going on between them and it has been admitted by Phoola Ram (PW 4). The occurrence has taken place at the house of the sons of the deceased and they could have been the best witnesses. 13. Beside the above two eye witnesses, the other witnesses who have appeared on behalf of the prosecution, some of them state that when they reached at the spot, they saw the accused running with a knife in his hand. PW 5 is Jagna Ram. His house is hardly 6 and 7 steps away from the place of the occurrence and he stated that when he reached the house of the deceased, the deceased was lying on the chowk'. He has also corroborated the prosecution case that it was accused who had caused the injury to the deceased and ran away immediately after the occurrence. His house is hardly 6 and 7 steps away from the place of the occurrence and he stated that when he reached the house of the deceased, the deceased was lying on the chowk'. He has also corroborated the prosecution case that it was accused who had caused the injury to the deceased and ran away immediately after the occurrence. The injured was found lying in the 'chowk' and seeking the accused fleeing away with a knife, is also a piece of circumstantial evidence against the accused. The similar statement has been made by Dana Ram (PW 7) and Bhiwa Ram J (PW 11). Thus, on the basis of the evidence, on record we are satisfied that the accused is none else but has caused the injury to the deceased by knife. 14. Now the question remains to be considered is whether the act of the appellant constitutes an offence under Section 302 IPC or a lesser offence under Section 304-1 or 304-11, IPC. From the facts stated above, it can be said that the occurrence took place all of a sudden on a quarrel on a petty matter when Nand Lal S/o Kesar Dev (accused-appellant) who was cutting the unrippen branches of 'khejra' tree, was being asked by the deceased not to do so and he came down the tree and the accused took objection to it. The accused went inside the house and brought a knife and caused injury on the chest. He did not repeat the injury. 15. The contention of the learned counsel for the appellant is that the act of the accused does not fall under any of the clauses of Section 302 IPC. The learned counsel contends that there could not be any intention of the accused to cause death of the deceased as there was no enmity and the incident took place all of a sudden and at the spur of the moment without any premeditation. The learned counsel contends that to bring the case in clause thirdly of Section 302 IPC, it is also necessary for the prosecution to prove that the accused intended to inflict the injury which is sufficient in the ordinary course of nature to cause death. The learned counsel contends that to bring the case in clause thirdly of Section 302 IPC, it is also necessary for the prosecution to prove that the accused intended to inflict the injury which is sufficient in the ordinary course of nature to cause death. According to him, though, as said earlier, the injury was sufficient in the ordinary course of nature to cause death, but from the circumstances of the case it cannot be inferred that the accused intend to inflict injury which is sufficient in ordinary course of nature to cause death and, therefore, the learned counsel contended that the case does not fall and cannot fall in clause thirdly of Section 302 IPC. 16. The learned counsel for the complainant, on the other hand, contends that it was not that the occurrence took place at the spur of the moment but after there was some exchange of words in between the deceased and the accused and the deceased having admonished Nand Lal S/o Kesar Dev (accused-appellant), the accused went inside the house and brought a knife and, therefore, according to the learned counsel for the appellant the accused intended to cause the injury which was sufficient in the ordinary course of nature to cause death. Both the learned counsel have cited some cases on the point, but we need not refer to any of them cited by the learned counsel for the parties as all those cases have been decided on the respective facts and it has to be seen from the facts of each case as to whether an offence is made out under Section 302 IPC or 304-1 or part II. We have already said earlier that the occurrence took place at the spur of moment without any premeditation, the accused and the deceased, are neighbourers of the same enclosure; their houses are nearby situated. The accused caused only) one blow, no doubt, on the chest and Dr. J.P. Verma has said that the deceased must have tried to save himself and the force was used. The accused caused only) one blow, no doubt, on the chest and Dr. J.P. Verma has said that the deceased must have tried to save himself and the force was used. Under these circumstances, in our opinion, it cannot be said that the accused appellant intended to cause an injury which was sufficient in the ordinary course of nature to cause death and in the facts and circumstances of this case the accused can only be held guilty of the offence under Section 304-II of the IPC as the accused did the act with the knowledge i.e. of likely to cause death. 17. Consequently, we hereby partly allow this appeal and the order of the conviction and sentence of the accused appellant passed under Section 302 IPC is altered to under Section 304-11, IPC. The accused has already remained in custody for more than four years and further taking into consideration the fact that the accused is a member of Scheduled Caste, we are of the opinion that it will meet ends of justice if the appellant is sentenced to a term which he has already undergone. 18. The appellant (Kesar Dev) who is in jail is ordered to be released forthwith, if not required in any other case.Appeal partly allowed. *******