JUDGMENT 1. - This appeal is directed against the judgment dated 28-8-87, passed by the Sessions Judge, Doongarpur, 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. 500/- and in default of payment of fine further to undergo five months' rigorous imprisonment. 2. Appellant Dhulia was tried by the learned Sessions Judge, Doongarpur, for committing the murder of Dadam Chand on 20-7-83 at 8.45/9.00 p.m. in front of the house of Kuria situated at Khuntwara Mohalla in village Dariyakot, by inflicting injury with a knife. The case of the prosecution is that on 20-7-83, deceased Dadam Chand alongwith accused Dhulia came from the side of Jain Mohalla to the House of Kuria and enquired from Manjula where the aunt (Bua) has gone, to which she replied that she has gone to her maternal-uncle's house. The accused and the deceased then sat near the comer of the house in the lane started talking. After sometime Manjula heard the noise of quarrelling and she, alongwith her brother Laxman, came out-side the house and went towards them. In her presence, Dhulia gave a slap to Dadam Chand and thereafter took out a knife from the pocket of his pent and inflicted injury with the knife on the chest of Dadam Chand. Dadam Chand cried and asked her to save him. The accused thereafter went away on a bicycle taking the knife with him towards Ghanchiwada Mohalla. She ran to call her mother. Her mother came and enquired from Dadam Chand, "What had happened" whereupon Dadam Chand informed her that Dhulia has inflicted injury to him with the knife. Her mother thereafter went to call Kundan Lal -the father of Dadam Chand. On being informed by Smt. Kuri, Kundan Lal and Smt. Parwati - the parents of Dadam Chand - came at the place of the incident but by that time the accused had run away and Dadam Chand breathed his last. While accused Dhulia and deceased Dadam Chand were quarrelling, PW 9 Soma and PW 10 Babu, who were taking liquor in the house of Lalu, ran away on hearing the noise that Dadam Chand has been killed by Dhulia. The prosecution, in support of its case, examined fourteen witnesses. While accused Dhulia and deceased Dadam Chand were quarrelling, PW 9 Soma and PW 10 Babu, who were taking liquor in the house of Lalu, ran away on hearing the noise that Dadam Chand has been killed by Dhulia. The prosecution, in support of its case, examined fourteen witnesses. PW 3 Manjyla, PW 4 Laxman, PW 5 Smt. Kuri, PW 6 Fakira, PW 7 Dharji and PW 8 Kuria have been produced as the eye witnesses of the occurrence and, also, to the effect that when they reached at the place of the incident, the deceased made the dying declaration before them. This evidence is sought to be corroborated by the evidence of PW 1 Parwati and PW 2 Kundanji - the parents of the deceased - who were informed by PW 5 Smt. Kuri regarding the incident and who came at the place of the incident on receiving the information but by that time Dadam Chand was dead. PW 9 Soma and PW 10 Babu were the two persons who were taking liquor in the house of Lalu, which was supplied to them by PW 7 Dharji - the servant of PW 8 Kuria. PW 12 Punja is the person from whom the accused demanded Rs. 100/- as he was requiring this amount for the purpose of purchasing leather but he had no money and, therefore, he asked Vasu Deo to give him some money and the accused pledged his bicycle for Rs. 150/-and took the amount from Vasu Deo. PW 11 Dr. Surendra Kumar was the Medical Officer, Primary Health Centre, Sagwara, who performed the autopsy on the deadbody of Dadam Chand. PW 13 Gaj Singh was the Station House Officer, Police Station, Chitri, who investigated the matter and presented the challan. PW 14 Shanker Lal was the Constable posted at Police Station, Chitri, who, on 9-8-83 took the sealed articles for F.S.L. examination at the State Forensic Science Laboratory, Jaipur. The case of the accused, as set-up in the defence, is that he has been falsely implicated in the case. The learned trial Court, after trial, convicted and sentenced the accused-appellant as stated above. 3. The case of the accused, as set-up in the defence, is that he has been falsely implicated in the case. The learned trial Court, after trial, convicted and sentenced the accused-appellant as stated above. 3. PW 1 Smt. Parwati - the mother of deceased Dadam Chand - and PW 2 Kundanji - the father of the deceased - came at the scene of the occurrence on being informed by PW 5 Smt. Kuri regarding the incident and when they reached there, by that thin Dadam Chand had breathed his last. They had, also not seen the accused running from the place of the occurrence. They are Therefore, not the eye witnesses to the occurrence and their evidence is, therefore, of assistance to the prosecution. PW 9 Soma and PW 10 Babu are the two persons who were taking liquor in the house of Lalu, in front of whose house the incident took-place. They had, also, not seen the accused-appellant inflicting injury to deceased Dadam Chand and they only heard the noise and thought that a raid has been arranged and they, therefore, ran away and afterwards they heard that Dadam Chand has been murdered. The evidence of these two witnesses is, also, of no help to the prosecution. 4. The prosecution case mainly rests upon the evidence of the remaining six witnesses who are alleged to have seen the incident and had reached near the place of the incident and Dadam Chand made a disclosure to them that the accused had inflicted injury to him by the knife. PW 3 Manjula has stated that about four years before Dhulia and Dadam Chand came to her house at 8.00 p.m. Dhulia was carrying a bicycle while Dadam Chand was having a bottle of liquor. Dhulia called her by naming `Bua'. She was, at that time, dressing the injury of his brother which was caused to him due to coming into contact with a broken-glass. She replied that her mother had. gone to her maternal-uncle's house. Both of them then sat together on the public way. After bolting the door, she sat inside the house. Sometime thereafter she heard the noise of quarrelling of the accused and the deceased. She went out-side the house and asked them not to quarrel. Dadam Chand replied that they are quarrelling on the way and not in her house. Both of them then sat together on the public way. After bolting the door, she sat inside the house. Sometime thereafter she heard the noise of quarrelling of the accused and the deceased. She went out-side the house and asked them not to quarrel. Dadam Chand replied that they are quarrelling on the way and not in her house. In the meantime Dadam Chand cries, "Aunt, please save me... save me." She went near him and enquired from Dadam Chand, whereupon Dadam Chand informed her that Dhulia has inflicted injury to him by the knife. Dadam Chand, after receiving the injury, fell down. She went to her maternal-uncle's house to call her mother and informed her that some persons are quarrelling in the way. Her mother came there and enquired from Dadam Chand, "What had happened" and Dadam Chand replied that Dhulia has inflicted injury to him with a knife and after infliciting the injury he ran away. PW 4 Laxman has stated that he was in the house. When the accused came there, his sister; was dressing his injury. The accused enquired about his mother, to which Manjula replied that she had gone to her maternal-uncle's house. Both of them went down-stairs and sometime thereafter they started quarrelling. His sister thereafter went near them and asked them not to quarrel there, to which they replied that they are quarrelling on the way and not in her house. He heard the cries of Dadam Chand crying for saving him. His sister thereafter went near Dadam Chand and asked what had happened, upon which Dadam Chand informed her that Dhulia has inflicted injury to him with a knife. This witness has neither seen the occurrence nor had gone to the place of the occurrence. He has, also, not stated that the tying declaration was made by the deceased before him. The evidence of this witness is, also, of no consequence to the accused. He has not stated anything which could implicate the accused with the crime. PW 5 Smt. Kuri has stated that four years before, at about 8.00/8.30 p.m., she had gone to her mother's house. Her daughter Manjula came there and informed her that some persons are quarrelling near their house. She went to her house and saw Dadam Chand lying on the ground. PW 5 Smt. Kuri has stated that four years before, at about 8.00/8.30 p.m., she had gone to her mother's house. Her daughter Manjula came there and informed her that some persons are quarrelling near their house. She went to her house and saw Dadam Chand lying on the ground. She enquired from Dadam Chand what had happened, upon which he replied that Dhulia inflicted injury to him with a knife. PW 6 Fakira, whose house is situated near the place of the incident, has stated that about four years before, at about 8.00 p.m., he was sleeping in his house. Dhulia and Dadam Chand came together quarrelling and they were speaking loudly. Dadam Chand asked Dhulia "please, do not do it" and thereafter he fell down on the ground. Dadam Chand thereafter informed that Dhulia has inflicted injury to him with a knife. He did not see the accused inflicting injury to the deceased but he saw the accused standing by the side of Dadam Chand and was armed with a knife. PW 7 Dharji has stated that about three years before, he was selling the liquor. Dadam Chand and Dhulia came there together. Both of them took liquor and offer him a currency note of Rs. 50/- against the price of the liquor but as he was not having the change with him, therefore, he returned the currency not of Rs. 50/- to him and started supplying liquor to the other customers. In the meanwhile several persons collected there. Dadam Chand was crying and Smt. Kuri asked him what had happened, upon which Dadam Chand disclosed that Dhulia has inflicted injury to him with a knife. The police thereafter came to the place of the occurrence. PW 8 Kuria has stated that he knew' Dadam Chand who had died. About four years before in the night at about 8.00/8.30 p.m. he was taking his meals. Near his house, Dadam Chand and accused Dhulia were taking liquor. Dharji is his servant who used to sell liquor. Dadam Chand informed him that Dhulia has inflicted injury to him with a knife. On receiving the injury, Dadam Chand fell down on the ground. This witness has further stated that he had not seen accused Dhulia inflicting injury to deceased Dadam Chand. 5. Dharji is his servant who used to sell liquor. Dadam Chand informed him that Dhulia has inflicted injury to him with a knife. On receiving the injury, Dadam Chand fell down on the ground. This witness has further stated that he had not seen accused Dhulia inflicting injury to deceased Dadam Chand. 5. The prosecution has produced six witnesses as the eye witnesses to the occurrence but none of these witnesses has stated that he had seen the incident of inflicting injury by accused-appellant Dhulia with a knife to deceased Dadam Chand. They have only stated that they were present there and Dadam Chand fell down on the ground and on being asked, informed them that accused Dhulia has inflicted injury to him with the knife. Though the incident took place in their presence but the infliction of the injury by the accused-appellant with the knife to Dadam Chand has not been stated by any of them. Their evidence, therefore, only relate to the dying declaration made by the deceased before them. The presence of these witnesses at the scene of the occurrence was most natural as their houses are situated near the place of the occurrence they had heard the quarrel between accused Dhulia and deceased Dadam Chand. They came at the scene of the occurrence and when they reached there, by that time Dadam Chand was alive, who made a disclosure before these witnesses that the injury has been inflicted by Dhulia with a knife to him. PW 11 Dr. Surendra Kumar, who conducted the autopsy on the deadbody of Dadam Chand has stated that Dadam Chand after receiving the injury could have survived for half an hour. Dadam Chand was, therefore, in a position to make the statement before these witnesses who came there and on enquiry he disclosed that Dhulia had inflicted injury to him with a knife. The evidence of these witnesses does not suffer from any infirmity and inspires confidence. After going through the statements of these witnesses, we are of the opinion that all these witnesses are speaking truth and they have stated what they had actually seen. The evidence of these witnesses does not suffer from any infirmity and inspires confidence. After going through the statements of these witnesses, we are of the opinion that all these witnesses are speaking truth and they have stated what they had actually seen. They have not exaggerated the incident and have not stated that they saw the accused inflicting injury to the deceased and have only stated that they had seen the accused present at the place of the incident when Dadam Chand fell down on the ground and stated that Dhulia inflicted injury to him with a knife and when Smt. Kuri and other persons came at the place of the incident, the deceased informed them that Dhulia has inflicted injury to him with a knife. From the evidence of these witnesses, it has been established that the deceased, after receiving the injury, disclosed to them that the accused was the assailant who inflicted injury to him with the knife. The making of the disclosure by the deceased to these witnesses, therefore, stands proved. We are, therefore, of the view that the evidence of dying declaration made by the deceased has rightly been believed by the learned trial Court. 6. The evidence of these five witnesses, also, stands corroborated from the evidence of PW 11 Dr. Surendra Kumar - the then Medical Officer, Primary Health Centre, Sagwara, who conducted the autopsy on the deadbody of Dadam Chand and found one injury on his person. This injury was a stab wound of 21/2 c.m. x 11/4 c.m. x 11 c.m. obliquely on left side of the chest wall on 4th intercostal region 1/2 c.m. away from the sternal border and the direction of the stab wound was upward and outwardly. The stab wound was ante-mortem in nature. 7. The next question, which requires consideration is: what offence has been made-out against the accused-appellant? According to the learned counsel for the appellant, the case of the prosecution itself is that some altercation took place between the accused and the deceased and the deceased gave a slap to the appellant, on which the accused took-out the knife and inflicted injury to Dadam Chand, which resulted in his death. According to the learned counsel for the appellant, the case of the prosecution itself is that some altercation took place between the accused and the deceased and the deceased gave a slap to the appellant, on which the accused took-out the knife and inflicted injury to Dadam Chand, which resulted in his death. His further case is that the accused never intended to cause the death of the deceased but it was at the spur of moment that the injury was inflicted by him to the deceased with the knife and, therefore, the case against the appellant is squarely covered by Exception 4 to Section 300 Indian Penal Code and he can be convicted for the offence under Section 304 Part-I, Indian Penal Code His conviction for the offence under Section 302 Indian Penal Code was, therefore, uncalled for. The contention of the learned Public Prosecutor, on the other hand, is that the appellant inflicted the knife injury with such a force which penetrated into the stomach of the deceased upto the depth of 11 c.m., which clearly shows that the appellant had intention to commit the murder of the deceased and he inflicted the injury to the deceased with that intention leaving no chance for the survival of the deceased. 8. It is not in dispute that the accused and the deceased came together from the side of Jain Mohalla, purchased a bottle of liquor and took the liquor in the lane near the comer of the house of Kuria. While taking liquor, they started quarrelling together PW 3 Manjula has stated that the accused and the deceased were quarrelling together and were giving fisty-blows to each other. The circumstances of the case, thus, make it clear that the appellant did not inflict the injury with a view to cause the death of Dadam Chand or with a view to cause an injury to the deceased which would have been sufficient in the ordinary course of nature to cause the death of the victim. The accused and the deceased were taking liquor together in the lane and the quarrel started. Dadam Chand gave a slap to the accused and the accused-appellant, on this sudden fight, without any pre-meditation, in a heat of passion, took-out the knife and inflicted only one injury, by the knife on his chest which proved fatal. The accused and the deceased were taking liquor together in the lane and the quarrel started. Dadam Chand gave a slap to the accused and the accused-appellant, on this sudden fight, without any pre-meditation, in a heat of passion, took-out the knife and inflicted only one injury, by the knife on his chest which proved fatal. There was no repetition of the blow by the appellant, though he was not stopped by any-one and had sufficient opportunity to repeat the injuries. The knife injury was not inflicted by the accused-appellant to the deceased with an intention to cause the death of Dadam Chand and, therefore, the case against the accused-appellant falls within Exception 4 to Section 300 Indian Penal Code and he is, therefore, entitled for the benefit of this Exception. The conviction of the appellant, therefore, deserves to be modified from Section 302 to Section 304 Part-I, Indian Penal Code. The appellant is behind the bars since 8-1-87 and has already undergone more than 81/2 years' imprisonment. 9. In the result, the appeal, filed by appellant Dhulia, is partly allowed. His conviction under Section 302 Indian Penal Code is set-aside and he is acquitted of the charge under Section 302 Indian Penal Code but he is convicted under Section 304 Part-I, Indian Penal Code and is sentenced to undergo the period of imprisonment already undergone by him and a fine of Rs. 100/- and in default of payment of fine further to undergo seven days rigorous imprisonment.Appeal partly allowed. *******