JUDGMENT 1. - This appeal is directed against the judgment dated 18.12.87, passed by the District and Sessions Judge, Sirohi, by which the learned Sessions Judge convicted the accused-appellant for the offence under Section 302 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 2,000/- and in default of payment of fine further to undergo three months' rigorous imprisonment. 2. Accused-appellant Lalia was tried by the learned Sessions Judge, Sirohi, for committing the murder of one Poona in the field of one Rugha situated near the house of the deceased in village Thandi Beri (District Sirohi) on 18.4.86 at 9.00 p.m. According to the prosecution case, the accused was suspecting that deceased Poona had illicit relations with the wife of the accused. On 18.4.86, Poona had gone to village Aamli to bring Zarda where accused Lalia and PW 6 Dalla met him. They bought a bottle of liquor. All of these three persons consumed liquor and some liquor remained in the bottle. After taking liquor, they came to the house of the deceased in village Thandi Beri. PW 6 Dalla left Poona and Lalia near the house of the deceased and he himself went to his house. Accused Lalia and Poona entered inside the house of Poona. Thereafter accused Lalia asked Poona to accompany him to his house for taking some more liquor. Initially Poona refused but ultimately when forced by the accused, he went with the accused. After covering a distance of about one field, the accused inflicted an injury, by a dagger in the chest of deceased Poona and on receiving that injury, Poona fell down and the accused ran away. PW 8 Smt. Jaggi - the widow of deceased Poona and his sister Chanda raised alarm which attracted PW 5 Dewa - the brother of the deceased and PW 7 Sankla, who came there and saw the accused running away. Poona succumbed to the injury at the spot. The prosecution, in support of its case, examined twelve witnesses. The accused did not examine any evidence in defence. The learned trial Court, after trial, convicted and sentenced the accused-appellant, as stated above. It is against the judgment dated 18.12.87, passed by the trial Court that the appellant has preferred this appeal. Poona succumbed to the injury at the spot. The prosecution, in support of its case, examined twelve witnesses. The accused did not examine any evidence in defence. The learned trial Court, after trial, convicted and sentenced the accused-appellant, as stated above. It is against the judgment dated 18.12.87, passed by the trial Court that the appellant has preferred this appeal. 2-A. The nature of evidence, produced by the prosecution, consists of the statements of PW 8 Smt. Jaggi - the widow of the deceased - who is an eye-witness to the occurrence and who had seen deceased Poona going with the accused-appellant and has, also, seen the accused inflicting injury by a dagger on the chest of deceased Poona, who raised alarm, which attracted PW 5 Dewa - the brother of the deceased - and PW 7 Sankla, who came at the place of the occurrence and saw the accused running away. PW 4 Jaita is the uncle of the deceased, who was informed by PW 5 Dewa regarding commitment of the murder of Poona by the accused and who went to the Police Station, Pindwara and lodged the report on 19.4.86 at 7.35 p.m. PW 10 Mohammad Hussain and PW 11 Natha are the two Motbir witnesses, in whose presence the recoveries were made, but they have not supported the prosecution case and were declared hostile. PW 1 Dr. Chetan Prakash was the Medical Officer Incharge, Government Hospital, Pindwara, who, on 19.4.86, conducted the post-mortem on the dead-body of deceased Poona and found one incised wound on his chest. PW 3 Gani Khan was the Head Constable posted as the Malkhana Incharge of the Police Station, with whom the incriminating articles in the case were kept and who has stated that the articles remained in the same sealed condition in which they were deposited with him and no seals on these articles were tampered with. PW 9 Nawab Khan was the Police Constable posted at Police Station, Pindwara, who, on 20.4.86, took four sealed packets for F.S.L. examination. He first took the articles to the Office of the Superintendent of Police, Sirohi, and got the forwarding letter prepared through PW 2 Dharam Singh, L.C. of Crime Branch and after obtaining the forwarding letter, Nawab Khan went to Jaipur and deposited the sealed articles in the State Forensic Science Laboratory, Jaipur. He first took the articles to the Office of the Superintendent of Police, Sirohi, and got the forwarding letter prepared through PW 2 Dharam Singh, L.C. of Crime Branch and after obtaining the forwarding letter, Nawab Khan went to Jaipur and deposited the sealed articles in the State Forensic Science Laboratory, Jaipur. PW 12 Hari Singh was the Station House Officer, Police Station, Pindwara, who conducted the investigation and presented the challan. 3. The case of the prosecution mainly rests upon the evidence of PW 4 Smt. Jaggi the widow of the deceased- who is the eye-witness of the occurrence, which is sought to be corroborated by the evidence of PW 5 Dewa - the brother of the deceased - and PW 7 Sankla, who came to the scene of the occurrence immediately after the incident and saw the accused-appellant running away, as well as from the evidence of PW 6 Dalla, who met the deceased and the accused in village Aamli and accompanied them upto the house of the deceased, as well as from the statement of PW 1 Dr. Chetan Prakash, who conducted the post-mortem on the dead-body of deceased Poona and found one incised injury in his chest caused by a dagger. PW 8 Smt. Jaggi has stated that she was married to deceased Poona about ten/twelve years before and on the fateful day, her husband Poona had gone to village Aamli for buying Zarda and in the evening Poona alongwith Lalia and Dalla came to the house. At that time all of them were in a drunken state. Dalla did not enter in the house and went to his house from out side. The accused was having a liquor-bottle in his hand, which was containing some liquor. The accused asked her husband Poona to accompany him to his house for taking some more liquor whereupon initially Poona refused but the accused pulled him by catching his hand and both of them went away. At that time her sister-in-law Chandna was, also, inside the house. After covering some distance when the accused and the deceased reached near the field of Ranga, the accused pushed Poona down to the earth and inflicted an injury by the dagger on the chest of Poona. After inflicting the dagger injury, the accused went to his house. She and her sister-in-law raised alarm, which attracted Dewa and Sankla. After covering some distance when the accused and the deceased reached near the field of Ranga, the accused pushed Poona down to the earth and inflicted an injury by the dagger on the chest of Poona. After inflicting the dagger injury, the accused went to his house. She and her sister-in-law raised alarm, which attracted Dewa and Sankla. She went near the deceased and at that time found him alive but thereafter Poona breathed his last. She informed Sankla and Dewa that accused Lalia committed the murder of her husband. Accused Lalia committed the murder of her husband because he was suspecting that Poona was having illicit relations with the wife of the accused. Dewa thereafter went to call Jaita. One shoe of accused Lalia left at the place of the incident. In the cross-examination, she has stated that the accused and Poona took some liquor in her house, also, and the place where the incident took place, is situated at a distance of only one field from her house and accused Lalia did not say anything to her husband but pushed him to the earth and inflicted injury on his chest by the dagger. From the cross-examination of this witness, nothing could be elicited which could discredit her testimony. The testimony of this witness remains unshaken. The presence of this witness was very much natural in her house and the accused came with the deceased in the house and thereafter the accused and the deceased proceeded together and the incident took place in the field nearby and it was a Moon lit night and, therefore, there was every possibility of seeing the incident by this witness. The evidence of this witness was, therefore, rightly believed by the trial Court. 4. This evidence of PW 8 Smt. Jaggi further finds corroboration from the evidence of PW 5 Dewa and PW 7 Sankla, who reached at the place of the incident immediately after the occurrence and saw the accused running. The cries raised by Smt. Jaggi and Chandna attracted these witnesses. The medical evidence, also, corroborates the statement of PW 8 Smt. Jaggi. The cries raised by Smt. Jaggi and Chandna attracted these witnesses. The medical evidence, also, corroborates the statement of PW 8 Smt. Jaggi. By the evidence of these witnesses, the prosecution has been able to prove the case against the accused-appellant beyond a reasonable manner of doubt and it has been established from the evidence produced by the prosecution that the accused-appellant was the perpetrator of the crime and it was the accused-appellant who inflicted injury by a dagger on the chest of deceased Poona, which resulted in his death. 5. The next point, which requires consideration, is : what offence is made out against the accused-appellant ? The deceased and the accused alongwith PW 6 Dalla took liquor together in village Aamli. Thereafter they came to the house of the deceased. From there, the accused and the deceased proceeded towards the house of the accused and in the way, near the field of Ranga, the accused-appellant inflicted an injury by the dagger in the chest of deceased Poona. The accused did not repeat the blow. Only one injury was inflicted by him. Though the injury proved fatal but the attending circumstances show that the accused did not inflict the injury with an intention to kill deceased Poona as neither there was any pre-meditation nor was the injury inflicted with an intention to commit the murder of Poona. The accused inflicted the injury that may likely to cause death of Poona and, therefore, the case against the accused- appellant is not covered by Clauses Firstly or Thirdly of Section 300 Indian Penal Code and the offence made out against him falls under Section 304 Part I, Indian Penal Code. The conviction of the appellant, therefore, deserves to be altered from Section 302 to Section 304 Part I, Indian Penal Code. 6. In the result, the appeal, filed by accused-appellant Lalia, is partly allowed. His conviction and sentence under Section 302 Indian Penal Code, passed by the learned trial Court, are set-aside and he is convicted for the offence under Section 304 Parti, Indian Penal Code and is sentenced to seven years' rigorous imprisonment and a fine of Rs. 200/- (Rs. two hundred) and in default of payment of fine further to undergo fifteen days rigorous imprisonment. 200/- (Rs. two hundred) and in default of payment of fine further to undergo fifteen days 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 the appellant. The appellant is in jail since 19.4.86 and has served out the sentence imposed against him. He shall be released forthwith if not required in any other case.Appeal partly allowed. *******