Chhunnu Lal, the accused appellant in S. T. No. 424 of 1985 has been convicted of the offences under Sections 302 and 323,i. P. C. and sentenced to undergo imprisonment for life and imprisonment for one month under the two accounts, by the judgment and order dated 30-4-1980. 2. The prosecution contention was that the accused and Puttani alias Mustqeem, the deceased in the case were good friends and on the date of occurrence i. e. , 12-3-1985 had taken meat and alcohol together at the house of Chhunnu Lal, the accused appellant. Something occurred between the two which resulted in exchange of abuses which was not paid much attention by the neighbour as it was usual among them. However, at about 10 in the evening, one Pradeep alias Dinesh came to Liayaakat, the informant in the case and conveyed that Chhunnu Lal was actually killing Puttani and they should be set apart. Liayakat then went with Pradeep, Pradhan Subedar Singh, Shivlal Kachi, Ram Avatar and Nathu Lal but when he attempted for the intervention he was also given a blow of lathi striking him in the eyebrow region. When the lathi of Chhunnu Lal had broken, he picked-up a brick and assaulted Puttani with it in the head region thereafter he died. Chhunnu Lal was brought forcibly, to outer portion and the room was closed, an information was sent to the family members of Puttani and in the next morning they came to the Police Station where a first information report was lodged at 7. 10 a. m. 3. After due investigation, a charge-sheet was submitted by the police for prosecution under Section 304,i. P. C. but after committal as both the offences were tried by the Court of Sessions, the Session Judge proceeded to frame a charge under Sections 302 and 323,i. P. C. and recorded the conviction after considering the offences. Aggrieved by the same the accused has come up with the appeal. 4. We have gone through the evidence led by the prosecution and defence along with the counsel for the appellant and also AGA. The prosecution had examined PW 1 Liayakat and PW 2 Natthu Lal as witnesses of the occurrence and they had duly supported the above mentioned prosecution story. The other witnesses examined were PW 3 Dr. Rizvi who had conducted the post-mortem examination upon the body of Puttani alias Mustaqeem. The prosecution had examined PW 1 Liayakat and PW 2 Natthu Lal as witnesses of the occurrence and they had duly supported the above mentioned prosecution story. The other witnesses examined were PW 3 Dr. Rizvi who had conducted the post-mortem examination upon the body of Puttani alias Mustaqeem. The report and the statement of the witness simply shows that the deceased had two lacerated wounds, 5 abrasions and lacerated contusions in addition to multiple contusion and a simple contusion. The nature of injury may not be gone into in detail and it can be said at the very outset that they were a result of fanatic beating. All that can be said about this evidence is that it does not contradict the direct testimony of witnesses and even the fact of the two persons i. e. , the deceased and the accused having taken liquor has been corroborated by PW 3 Dr. S. A. Rizvi. PW 4 Head Constable B. C. Dixti had prepared the Chick F. I. R. on the basis of the first information report and registered the case etc. His evidence was almost formal and so was the case with PW 6 Constable H. N. Singh who had escorted the dead-body and identified the same before Dr. Rizvi. PW 7 Dr. S. N. Mishra had conducted the medical examination of Sri Liayakat, PW 1 who was said to have been injured by the blow given by the accused during the occurrence itself. The other witness PW 5 H. S. Sharma and PW 8 R. R. Singh who were Sub-Inspector of police. The former had conducted the inquest and is also said to have taken in the police possession the Kurta of the accused which according to his memorandum had blood stains received from the blood of the deceased. However, for that matter, only the memorandum prepared or the statement of the investigating officer is not going to matter and it would need proper evidence of chemical examiner and serologist to prove that the blood found on that Kurta was of the deceased or at least there could be a possibility of that. The said Kurta has not been sent for any examination and consequently that part of the evidence is of no use as against the accused. 5. The said Kurta has not been sent for any examination and consequently that part of the evidence is of no use as against the accused. 5. The witnesses of occurrence namely, PW 1 Liyakat PW 2 Nathu Lal had stated about the occurrence at mentioned above. They may be believed but that alone is not sufficient for the case. It is remarkable that in view of the facts as alleged in the FIR and also as stated by the PW 1 Liyakat, one Pradeep was the first witness of the occurrence, which ultimately took shape of homicide in the case. In order to ascertain and know the real nature of crime, his evidence could be of value but for reasons best known to the pro secution, he has not been examined at all. In the absence of his evidence, it could not be said as to what had transpired between the two i, e. , the accused and the deceased which culminated into death of the deceased. 6. The argument of the learned counsel for the appellant in this case is, apart from challenge the testimony of the witness, which we are not going to accept, was directed to show that there was no motive and since according to own showing of the prosecution, both the deceased and the accused were under the influence of liquor, there could not be any occasion for culpable homicide amounting to murder, There appears force in this contention. 7. Before proceeding with the law, the facts may be ascertained. As already said above the prosecution evidence has been silent a brat any motive between the accused and the deceased and all that was said was that they had taken liquor together and thereafter Pradeep went to inform that they were quarrelling and when Chhunnu Lal came for intervention, he too was injured. 8. Since the death of Puttani has been caused due to use of force by the present appellant, it cannot be doubted that he had committed the offence pf Culpable Homicide as defined under Section 299 of the Indian Penal Code As to whether it will amount to murder or not, will depend upon the applic ability or otherwise of any of the Exception provided under Section 300 of the Indian Penal Code. Needless to say that if the matter is covered by any of the exceptions the culpable would not amount to murder. In the instant case, the provisions of Exception 4 which read as under will be invited. "exception 4.-culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner". It is immaterial as to which party had offered the provocation or committed the first assault. In the instant case, the difficulty is that the prosecution has not only failed to lead any evidence in this behalf and has withheld the evi dence which could be of any use namely, evidence of Pradeep. Of course as argued by the learned AGA, intention is to be generally gathered from the nature of injuries but at the same time, the injuries are only an image of the force used. The evidence about intention is to be obtained from several surrounding circumstances, whatever be available. The accused is not to be presumed to be guilty of the honest offence possible, rather the conviction will be true and the accused will always be held responsible for the least that he could not account for. It may be made clear that it is the burden of the accused to account for anything but whatever remains unexplained may remain as his liability. In the instant case, evidence shows that the deceased and the accused, both were under the influence of liquor. They are said to have been friends and what may pinch at any particular moment among friends can neither be known nor be imagined. The benefit of this situation has to go to the accused as there cannot be any occasion for inferring the intention to commit murder in the basis of friendship which is shown between them and absence of any motive which might have been known to Pradeep if some exchange of talks has taken place between them just before the occurrence. 9. In view of the above situation, the conviction of the appellant under Section 302, I. P. C. does not seem to be justified and consequently, it should be altered to one under Section 304, Part II, I. P. C. The conviction under Section 323, I. P. C. should remain undisturbed. 10. 9. In view of the above situation, the conviction of the appellant under Section 302, I. P. C. does not seem to be justified and consequently, it should be altered to one under Section 304, Part II, I. P. C. The conviction under Section 323, I. P. C. should remain undisturbed. 10. The appeal is allowed in part. Setting aside the conviction of the conviction of the appellant under Section 302, I. P. C. , he is convicted of the offence of culpable homicide not amounting to murder punishable under Sec tion 304, Part II, I. P. C. and sentenced to imprisonment that he has already undergone. His conviction and sentence under Section 323, I. P. C. are main tained. The sentences as already directed by the trial court are to run CJQ-currently. He is said to be in jail and shall be released unless wanted in shine other case. Appeal allowed. .