JUDGMENT 1. - This criminal appeal has been directed by Lala s/o Thawara Gameti against the judgment dated 20.12.1993 passed by the learned Sessions Judge, Udaipur convicting the appellant Under section 302 of Indian Penal Code to undergo for life imprisonment. 2. The facts of the case as brought out by the prosecution are that a report (Ex. P/6) on 28.5.1992 at 8.45 p.m. was made by one Shri Kala, PW 3 to the fact that at 4.00 p.m. on that date, he was grazing his goats. Amara, (deceased) son of Vasa, his nephew alongwith his wife Amburi were errecting a stone wall on the boundary of the field. When the accused and his wife Ramli came there and asked Amara and his wife not to construct the wall. Amara had replied that he is constructing the wall on his own land and at this both the parties started abusing each other and beating each other with fists and stones. Lala s/o Thawara who was hiding a dagger, brought out that dagger during the fight and stabbed at the chest of Amara who died there and then. Lala ran away after stabbing. The complainant raised hue and cry at which Puna s/o Pacha and other village people came running. Lala had killed Amara and had given beating to his wife also because of the land dispute. 3. On said report, the FIR (Ex. P/14) was recorded. After recording of the FIR, the investigation had started. Post-mortem of the dead body was got conducted through Dr. Jagdish Budgurjar (PW 1). The post-mortem report is exhibited as Ex. P/1. The injuries on the part of Lala were also examined on 1.4.1992 by PW 1. The injury statements of appellant is Ex. P/2. The site plan (Ex. P/4) was prepared by PW 9. The dagger itself was recovered at the spot by PW 9 Shamrozkhan in the presence of PW 6 and PW 13 Mangala Ram vide memo (Ex. P/8). The blood soiled earth was collected vide Ex. P/9. The clothes of the deceased were seized vide Ex. P/10. In the presence of PW 6 and PW 13 `Panchnama' of the dead body was prepared vide Ex. P/11 and the body was handed over to the relatives vide Ex. P/12. A copy of Khasara Khatoni exhibited as Ex. P/16 by tracing map vide Ex. P/17. P/9. The clothes of the deceased were seized vide Ex. P/10. In the presence of PW 6 and PW 13 `Panchnama' of the dead body was prepared vide Ex. P/11 and the body was handed over to the relatives vide Ex. P/12. A copy of Khasara Khatoni exhibited as Ex. P/16 by tracing map vide Ex. P/17. The blood soiled earth, clothes of the deceased, as well of appellants were sent for F.S.L. Report vide Ex. P/4, which was received vide Ex. P/5. The report of F.S.L. was exhibited as Ex. P/18. Wife of the appellant was arrested by Ex. P/19 and the appellant was arrested vide Ex. P/20. After completion of the investigations and recording the evidence, the appellant was convicted to undergo life imprisonment as stated above. Hence this appeal. 4. The prosecution has examined as many as 13 witnesses and has also exhibited 20 documents. The accused had denied the occurrence and allegations. 5. The prosecution has produced PW 1 Dr. Jagdish Budgurjar, who had conducted the post-mortem on 31.5.1992 in the hospital, Jhadol. He has stated that the deceased was a normal healthy person. There was a stab wound injury 1.5 x 0.8 c.m. upto the depth of the cavity towards left side of the chest and according to him, the death has been caused because of the injury and because of the excess bleeding. The injury was sufficient to cause the death. On 1.6.1992, he had examined the appellant, Lala medically and had found two abrasions on the body of the appellant. 6. The prosecution is mainly based on the statement of PW 3 Kala, PW 4 Puna, PW 5 Kewala and PW 6 Amburi. PW 3 Kala is the complainant who had reported the matter vide his report (Ex. P/6) on 28.5.1992 at 8.45 p.m. He had narrated all the facts but in the cross-examination he has stated that when he had reached the place of occurrence, deceased was already lying down on the ground, assailant was running away. PW 4 Puna is the brother of the deceased. He is not an eye-witness. He had stated that he had reached after the occurrence. PW 5 Kewala had also stated that when he was called, the dead body was lying on the ground and the blood was oozing out. He is not an eye-witness. PW 4 Puna is the brother of the deceased. He is not an eye-witness. He had stated that he had reached after the occurrence. PW 5 Kewala had also stated that when he was called, the dead body was lying on the ground and the blood was oozing out. He is not an eye-witness. Whole of the prosecution case depends on the statement of PW 8 Amburi, who had narrated the facts as stated above. She is also one of the injured witness. 7. Apart from above, PW 2 Ramkumar is the police witness who had deposited sealed material for F.S.L. report at Jaipur. Another witness PW 4 is child witness, named Puna who had not seen the occurrence. PW 6 Bada is a witness in regard to preparation of recoveries including dagger and in whose presence, the site plan was prepared. The case was investigated by PW 9. 8. From the facts mentioned above, it is proved beyond doubt that a sudden dispute had arisen on the date and time as mentioned in the FIR between deceased and the appellant. Initially, there were oral abuses or fists exchanges, but all of a sudden, the appellant seems to have taken a dagger out and stabbed the deceased who died at the spot. Counsel for the appellant submits that there was hardly any intention to kill nor there was any enmity between the parties and therefore, the case cannot fall Under section 302 of Indian Penal Code, rather if at all any offence is made out, it falls Under section 304, Pt. II Indian Penal Code. According to him at the spur of the moment and in rage only, one stab injury has been given but unfortunately the stab injury, given without any intention of killing the deceased has proved to be fatal. The appellant had also minor type of two injuries upon his body. From the above, it is clear that there was a sudden dispute and the appellant had given a stab wound to the deceased. As there was no pre-meditated intention to kill the deceased, there is force in the argument of the learned counsel for the appellant, who is appearing as Amicus Curiae in the case. From the above, it is clear that there was a sudden dispute and the appellant had given a stab wound to the deceased. As there was no pre-meditated intention to kill the deceased, there is force in the argument of the learned counsel for the appellant, who is appearing as Amicus Curiae in the case. Because there is only one injury and one stab wound and there was no intention to kill but the injury proves to be fatal, the case does fall Under section 304 Pt. II and the accused is likely to be sentenced Under section 304 Pt. II Indian Penal Code in Patel Rasiklal Becharbhai & Ors. v. State of Gujarat, AIR 1992 SCW 1061 , in a case where the accused was attributed with knowledge that he was likely to cause death and injury was given suddenly in a sudden quarrel and after exchanging rebukes, it was held by the Supreme Court that, that case falls Under section 304 Pt. II Indian Penal Code. Applying the same law in the present case and in view of the submissions made above, it is a fit case where conviction Under section 302 Indian Penal Code be set aside and the accused be convicted and sentenced Under section 304 Pt. II Indian Penal Code for the reasons mentioned above. 9. In the result, the appeal is accepted to the extent that conviction of the appellant Under section 302 Indian Penal Code is set aside and the appellant is convicted Under section 304 Pt. II Indian Penal Code to undergo sentence of five years R.I.Appeal Partly Allowed. *******