JUDGMENT 1. - This appeal is directed against the judgment dated 16.9.93, passed by the Sessions Judge, Sirohi, by which the learned Sessions Judge convicted the accused-appellant for the offence under Section 304 Part I, Indian Penal Code and sentenced him to undergo seven years' rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's simple imprisonment. 2. Accused-appellant Raimal alias Raila was tried by the learned Sessions Judge, Sirohi, for the offence under Section 302 Indian Penal Code. The case of the prosecution is that on 9.11.91, after three days of Deepawali, Bherji was in his house. At about 4.00 p.m., the accused-appellant came into the compound of Bherji and wanted to enter into the adjoining house situated at the back-side of the house of Bherji. Bherji obstructed the accused, whereupon the accused took out knife from his pocket and inflicted injury on the chest of Bherji, who, on receiving the injury, fell to the ground. The occurrence was witnessed by PW 6 Mani Bai and PW 7 Doli Bai, who, also, tried to intervene. Initially the case was registered under Section 307 Indian Penal Code but on account of death of Bherji, the case was converted under Section 302 Indian Penal Code. The prosecution, in support of its case, examined fourteen witnesses. The accused did not examine any witness in his defence. The learned trial Court, after trial, came to the conclusion that the accused-appellant had no intention to kill Bherji (the victim) and, therefore, he acquitted the accused- appellant of the offence under Section 302 but convicted and sentenced him for the offence under Section 304 Part I, Indian Penal Code, as stated above. It is against this judgment that the appellant has preferred this appeal. 3. Learned counsel for the appellant has not challenged the conviction of the accused-appellant on merit but he submits that the appellant has wrongly been convicted under Section 304 Part I, Indian Penal Code and the totality of the established facts and the circumstances show that the occurrence had happened most unexpectedly on a sudden quarrel and the appellant without any intention inflicted one injury by a knife which proved fatal as the victim was eighty years of age. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below. 4. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below. 4. I have considered the submissions made by the learned counsel for the parties. 5. The incident took place at the spur of moment and without any pre-meditation. During the course of scuffle, the accused inflicted one injury with a knife on the chest of deceased Bherji, which proved fatal. The appellant can neither be imputed with the intention to cause death of the deceased nor with an intention to cause that particular injury but he can be imputed with the `knowledge' that he was likely to cause an injury which was likely to cause the death of the victim. The appellant inflicted the injury by a knife on the chest of Bherji - an old man aged about eighty years - without any intention to cause his death or to cause such bodily injury as its likely to cause his death and, therefore, he cannot be convicted for the offence under Section 304 Part I, Indian Penal Code but can be convicted for the offence under Section 304 Part II, Indian Penal Code as in the absence of any positive evidence that the appellant inflicted the injury with an intention to cause death of Bherji, neither Clause Firstly nor Thirdly of Section 300 Indian Penal Code is attracted. Section 304 Part I, Indian Penal Code is attracted where there is an intention and knowledge on the part of the accused to cause death of the victim whereas Section 304 Part II, Indian Penal Code is attracted where there may be a knowledge only on the part of the accused that the injury inflicted by him may cause the death of the victim. As such, the conviction and sentence of the appellant for the offence under Section 304 Part I, Indian Penal Code are liable to be quashed and set-aside and he can be convicted for the offence under Section 304 Part II, Indian Penal Code. 6. In the result, the appeal, filed by accused-appellant Raima alias Raila, is partly allowed. As such, the conviction and sentence of the appellant for the offence under Section 304 Part I, Indian Penal Code are liable to be quashed and set-aside and he can be convicted for the offence under Section 304 Part II, Indian Penal Code. 6. In the result, the appeal, filed by accused-appellant Raima alias Raila, is partly allowed. The conviction and sentence, passed against the appellant by the learned Sessions Judge, Sirohi, for the offence under Section 304 Part I, I.P.C., are set-aside and the appellant is convicted for the offence under Section 304 Part II, Indian Penal Code and is sentenced to undergo four years rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's rigorous imprisonment. The period of imprisonment undergone by the accused-appellant during investigation, enquiry or trial shall be set-off against the term of the sentence imposed against him.Appeal partly allowed. *******