A. R. TIWARI, J. ( 1 ) THIS appeal is directed against the judgment dated 6th March, 1986 rendered by the. 2nd Additional Sessions Judge, Mandleshwar in S. T. No. 42/83, thereby convicting the appellant under Section 302, I. P. C. and sentencing him to suffer imprisonment for life. ( 2 ) THE prosecution story, in brief, was that on 4. 10. 1982 at 6-00 P. M. deceased Ramesh stood in the village chouk when the appellant Narsingh came there and demanded to know from him as to why he had abused his brother yesterday and threatened to kill him. The after, he inflicted injuries on Ramesh by means of the knife. The incident was witnessed by Tayabali (P. W. 6) and Ram Bliarose (not examined in this case ). Accompanied by his brother Narayanan (P. W. 2) deceased Ramesh came to police station, Sanawad and lodged the report Exh. P110 on the basis of which a crime under section 307, I. P. C. was registered. Ramesh was medically examined by Dr. P. K. Pasine (P. W. 4. The injury report marked in this case is Exh. P/3. Spot map Exh. P/6 was prepared. The weapon of assault, knife, was seized pursuant on formation and submitted for chemical examination. The report of the chemical examination is Exh. P/15. Certain clothes belonging to 8the deceased were also seized on 14. 10. 1982 vide/seizure memo Exh. P/4. The autopsy was conducted by Dr. G. S. Mittal (P. W. 7 ). The post-mortem report is Exh. P/7. After usual investigations, charge-sheet was filed in the court. The appellant was charged under Section 302, I. P. C. to which he pleaded not guilty. On trial, he was convicted and sentenced as above. ( 3 ) WE have heard Shri R. K. Trivedi learned counsel for the appellant and Shri G. S. Chouhan learned Dy. OA for the State/respondent and have perused the record. ( 4 ) SHRI R. K. Trivedi has submitted that the appellant has been wrongly held to be guilty of the offence punishable under Section 302, I. P. C. He urged that witness Ram Bharose named in the F. I. R. was not even examined. He criticised the appreciation of the Trial Court and submitted that the appellant deserved to be acquitted. He criticised the appreciation of the Trial Court and submitted that the appellant deserved to be acquitted. Alternatively, he submitted that t-he incident as unfolded by the prosecution story occurred on the spur of moment and unfortunately the injured succumbed to the injuries after about five weeks. There was no intention to commit the murder or to cause particular injury and as such the appellant deserved to covinvicted only Under section 304-Il, I. P. C. Shri Chouhan, on the other hand, submitted that the Trial Court appreciated the evidence in correct legal perspective and there? Was no infirmity either in approach or in ultimate conclusion. As regards the nature of offence, he submitted that the appellant was rightly held guilty undersection 302, I. P. C. Alternatively, he submitted that looking to the entire facts and circumstances, the appellant should be convicted at least under Section 304 Part-I, I. P. C. rather than under Section 304 Part II, I. P. C. as urged. ( 5 ) THE question for determination is whether the appellant was rightly held guilty and if so, what is correct Section under which he deserved to be convicted. ( 6 ) THE conclusion of guilt is based on the following pieces of evidence-a) The report (F. I. R. Exh. P1 10) lodged by the deceased Ramesh. b) The statement of the deceased, Exh. P/14 recorded under Section 161 Cr. P. C. Exh. P110 and Exh. P/4 thus operated as dying declarations. c) The weapon of assault, knife, Art. TTKa was broken and recovered vide Exh. P113, pursuant to information recorded in Exh. P/120, 9. 10. 1982. A portion of this knife, Art. TTHT was taken out from the body of the deceased. These parts were submitted to chemical exan liner. The report Exh. P/15 returned the opinion as under: the metallic piece, art. TCT is a part of knife art. D. (Art. Ka and H above)d) Three witnesses testified to the dying declaration orally made to them. e) There was motive to assault as a result of abuses hurled to the brother of the appellant. f) There were cuts on the clothes. g) The appellant stood implicated even in Exh. P/3, the injury report. 7. The principles on which a dying declaration is admitted are well settled. e) There was motive to assault as a result of abuses hurled to the brother of the appellant. f) There were cuts on the clothes. g) The appellant stood implicated even in Exh. P/3, the injury report. 7. The principles on which a dying declaration is admitted are well settled. The legal maxim 15 Nemo moriturus proesumitur mentirit it conveyed that a man will not meet his maker with a lie in his mouth. ( 7 ) WE find that Exh. P1 10 and Exh. P114 are not in any way tainted or concocted. They contain ring of truth. This coupled with other circumstances, as particularised above, constituted sufficient matcrial against the appellant and clinched the issue. We thus do not find any infirmity in the verdict. The non-examination of Ram Bharose was thus inconsequential. Other contentions also lacked substance. Realising the impact of the enormity of evidence, the counsel ultimately confined his submissions only to the nature of the offence, in an effort to get the verdict softening the rigour. He urged the under noted factors as extenuating circumstances in support of his plea. The incident occurred on chance meeting without premeditation. a) The death took place on 10. 11. 1982, i. e. after about 37 days - the date of incident being 4. 10. 1982. b) The opinion of death as per post-mortem report, Exh. P/7 was as follows: in my opinion patient died within 24 hrs from the time of PM examination. Cause of death septicaem ia, shock peritonitis. e) There were only two injuries out of Which one was categorised as simple. f) There is no proof of intention as such It originated suddenly due to previous incident of trivial nature and contained no clement to commit offence of such enormity. ( 8 ) WE have perused the record and find that there is no satisfactory evidence to prove the requisite intention i. e. the mens rea to commit murder or to inflict particular injury as such. In Gurdeep Singh v. Jaswant Singh and Ors. t it is observed as under: we have heard learned counsel for the parties at length and have been taken through the findings and relevant evidence. In Gurdeep Singh v. Jaswant Singh and Ors. t it is observed as under: we have heard learned counsel for the parties at length and have been taken through the findings and relevant evidence. We agree with learned counsel for appellant that on the findings recorded by the High Court and in peculiar circumstances of this case accused No. 1, i. e. Jaswant Singh having had no intention to cause death of Kesar Singh he could be attributed only with the knowledge that the injury caused by him was likely to cause death. Therefore on the ratio laid down by this Court in Tholan v. State of Tamil Nadu, AIR 1984 SC 759 , it appears appropriate to coilvict him under Section 304 Part II. ( 9 ) APPLYING the aforesaid principal of law and considering entire facts and circumstances, particularly the sudden quarrel and death after about 37 days occasioning due to septicaemia, we think that there is scope to accept the prayer as regards the nature and quantum of penalty. In the circumstances, we take the view that the appellant has been wrongly convicted under Section 302i. P. C. He can be attributed with the knowledge that by the aforesaid acts death was likely to the caused. The appellant was of 23 years of age at the time of the judgment of the Trial Court. It is observed that the trial Court just jumped to the conclusion of 302, I. P. C. without adverting seriously to the above quoted circumstances. ( 10 ) ACCORDINGLY, we set aside the conviction as also sentence recorded under Section 302, I. P. C. We do not find that the case then falls under Section 304 Part I, I. P. C. Instead we find that the appellant can more appropriately be convicted under Section 304 Part II, I. P. C. Accordingly instead we hold the appellant guilty under Section 304 Part II, I. P. C. As regards the quantum, it must match the crime and criminal. We think that rigorous imprisonment for five years shall amply meet the ends of justice. We, thus, sentence him to suffer R. I. for five years. ( 11 ) THE appellant is reported to be on bail pursuant to this Courts order dated 29. 4. 1986. We think that rigorous imprisonment for five years shall amply meet the ends of justice. We, thus, sentence him to suffer R. I. for five years. ( 11 ) THE appellant is reported to be on bail pursuant to this Courts order dated 29. 4. 1986. He shall now surrender immediately to serve out the remaining part of the sentence, as substituted, failing which J. M. F. C. Sanawad shall lake appropriate steps for his arrest and commitmer custody. ( 12 ) IN the result, the appeal stands partly allowed with modification as above. Appeal allowed parties. .