D. K. TRIVEDI, J. The present Criminal Appeal was filed against the judgment and ordei Oated 26-3-1980 passed by the Sessions Judge, Pratapgarh, convicting accused Chhotey Lal under Section 302, IPC and sentencing him to imprisonment for life in connection with an incident which is alleged to have taken place on 16-3- 1979 at about 10. 00 a. m. in village Chhemar Saraiya Police Station Lalganj, District Pratapgarh. 2. According to the prosecution case on 16-3-1979 at about 8. 00 a. m. Kalu Ram son of Bhaggu was irrigating his wheat field from the canal. It is said that he had been irrigating his field from the preceding evening but still the entire filed could not be irrigated. At the said time accused Chhotey Lal was cutting the mustard plants by the sickle. It is said that the accused closed the Nali diverting it towards his field. Ram Dular son of Kalu Ram raised an objection and on this some altercation took place between Ram Dular and accused Chhotey Lal and it is said that accused began to abuse Ram Dular. It is the case of the prosecution that then Kalu Ram told Ram Dular to go away to his house and that he would come later on, there upon Ram Dular returned to his house. It is said that in the meantime the accused also reached there and then Bhola Nath told to the accused that it was not proper for him to have diverted the water to his own field and still he was using abusive language. It is said that some alter cation took place between Bhola Nath and accused Chhotey Lal and hearing alterca tion witnesses reached there. It is the case of the prosecution that during the course of exchange of hot words, Bhola Nath strongly prolested and stood up. The ac cused became angry and gave sickle blow to Bhola Nath causing injuries on the chest of Bhola Nath. Bhola Nath fell down on the ground and died there and the accused thereafter ran away. It is not dispuled that the "dalaan" of the accused lies at a distance of two paces from the house of Bhag gu and deceased Bhola Nath and just thereafter there is the house of accused Chhotey Lal. Bhaggu got a report, Ext. Bhola Nath fell down on the ground and died there and the accused thereafter ran away. It is not dispuled that the "dalaan" of the accused lies at a distance of two paces from the house of Bhag gu and deceased Bhola Nath and just thereafter there is the house of accused Chhotey Lal. Bhaggu got a report, Ext. Ka-1 written from his grandson Ram Dular and Ram Dular lodged the same at Police Station Lalganj at 12. 15 p. m. The Police Station is at a distance of 11 miles from the scene of the occurrence. On receipt of the written report, a chick report was prepared and the case was registered in the General Diary. 3. P W-5 O. P. Misra, took up the inves tigation and recorded the statement of Ram Dular and the Clerk Constable at the Police Station itself and thereafter he proceeded for the scene of the occurrence reaching there at about 1. 30 p. m. On the spot he prepared inquest report Ext. Ka-6 and other relevant papers Ext. Ka-7 to Ka-9 for autopsy on the dead body of Bhola Nath. The Investigating Officer thereafter recorded the statement of other witnesses and recovered blood stained earth and prepared site-plan Ext. Ka-11. The Investigating Officer arrested the accused Chhotey Lal on 19-3-1979 near the Poultry Farm at Pratapgarh. The accused volun teered to hand over the sickle and took the Investigating Officer to a Nala and after removing the earth, he took up the sickle Ext. Ka-1 and handed over the same to the Investigating Officer. The Investigation Officer also prepared site-plan from where the sickle was recovered and after completing the investigation he submitted charge-sheeta gainst the accused. 4. PW-6dr. D. C. Srivastava who con ducted autopsy on the dead body of the deceased, found the following antemortem injuries on the dead body of Bhola Nath. The post-mortem report is Ext. Ka-15: (1) Incised would 3-1/2" x 2" x chest cavity deep, on front and upper point of left side of chest 2-1/2" above the left nipple at 10 O clock position. The long axis of the wound was in the direction of 10 O clock position from the nipple. The third rib and pleura were found cut under neath the wound. The margins of the wound were clean cut, smooth and even. The long axis of the wound was in the direction of 10 O clock position from the nipple. The third rib and pleura were found cut under neath the wound. The margins of the wound were clean cut, smooth and even. (2) Incised would 1/2" x 1/10" x skin deep, on the outer side of pinna of left ear just above the ear lobule. According to the Doctor the death was caused due to shock and haemorrhage as a result of injury No. 1. 5. The prosecution, in support of its case, examined seven witnesses. Out of them PW-1 Ram Dular, PW- 2 Brij Lal, PW-3 Ram Raj are the witnesses of fact. PW-4 Ram Kirpal Misra Clerk Constable registered the case and prepared chick report. PW-5 S. I. , O. P. Misra, conducted the investigation in the case and submitted charge-sheet. PW-6 Dr. D. C. Srivastava conducted autopsy on the dead body of the deceased and proved the post-mortem report Ext. Ka-15. PW-7 Constable Anil Kumar Shukla brought the dead body of Bhola Nath to the mortuary for post-mor tem examination. 6. On the other hand the accused denied the prosecution case and he denied the diverting of the water and closing of the Nali. He further denied that he had given sickle blow on the chest of deceased Bhola Nath and thereafter fled away. He stated that he was implicated due to enmity. 7. The learned Sessions Judge, Pratapgarh, after considering the evidence on record came to the conclusion that the prosecution has successfully proved the guilt of the accused and, therefore, he convicted and sentenced him as mentioned above. 8. The appellant feeling aggrieved from the aforesaid judgment and order filed the present appeal in this Court. 9. We have heard the learned Counsel for the appellant as well as the learned Additional Government Advocate and perused the record. 10. The main contention of the learned Counsel for the appellant is that the witnesses were not present at the lime of the incident and they are not reliable witnesses. It has also been pointed out that Bhaggu who dictated the report, has not been produced by the prosecution and the report is not a genuine one but, in our opinion, the contention of the defence Counsel has no force. PW-1 Ram Dular is the nephew of the deceased. Bhola Nath. It has also been pointed out that Bhaggu who dictated the report, has not been produced by the prosecution and the report is not a genuine one but, in our opinion, the contention of the defence Counsel has no force. PW-1 Ram Dular is the nephew of the deceased. Bhola Nath. PW-2 Brij Lal is the first cousin of Bhola Nath deceased and Ram Raj PW-3 belongs to the Biradri of deceased Bhola Nath, No doubt, these three eye-witnesses are re lated to Bhola Nath deceased but on this ground alone their testimony cannot be thrown out. PW-1 Ram Dular has narrated the prosecution story in detail and he was also cross-examined by the defence Coun sel. There is nothing in his cross-examina tion on the basis of which it can be said that he is not telling the correct facts. The tes timony of Bhola Nath finds support from the medical evidence as well as other cir cumstances of the case. PW-2 Brij Lal and PW-3 Ram Raj also supported the prosecution case and fully corroborated the testimony of PW-1 Ram Dular. These three witnesses were also cross-examined by the defence but nothing was found in their cross-examination on the basis of which it can be said that they were not present or they were not telling the correct facts. The FIR was lodged promptly in which the whole incident has been nar rated and this also corroborate the prosecution case. The Doctor who con ducted autopsy found the wound on the chest of the deceased and according to him the said injury was sufficient in the ordi nary course to cause the death of the deceased. In cross-examination of Ram Dular PW-1 a suggestion was put to Ram Dular that Ram Dular and his lather chased Chhotey Lal from his field and Chhotey Lal came running near the house and then the women of Ram Dulars house started pelting stones at Chhotey Lal. A suggestion was also put that when Chhotey Lal reached near his "dalaan" then Bhola Nath and several others surrounded Chhotey Lal and one Jwala Prasad attacked nim with Kama. It is further suggested that there was scuffle between Bhola Nalh and Chhotey Lal and Chhotey Lal on seeing the Kanta coming over his head, pushed aside Bhola Nath and ran away. However, the accused in his statement under Section 313, Cr. It is further suggested that there was scuffle between Bhola Nalh and Chhotey Lal and Chhotey Lal on seeing the Kanta coming over his head, pushed aside Bhola Nath and ran away. However, the accused in his statement under Section 313, Cr. P. C. has not said anything about this defence. In his state ment under Section 313, Cr. P. C. he denied the prosecution case and stated that he was implicated in this case falsely. The sugges tion put to PW-1 Ram Dular also did not find any support from any other evidence on record. It is also not possible to believe that the aroused was man-handled by several persons but even then he had not received any injury. The learned Sessions Judge has considered the evidence on record in great detail and thereafter recorded a finding that the testimony of these three eye-witnesses is believable and they are reliable witnesses and we find no illegality in the said finding. 11. Lastly it is submitted by the learned Counsel for the appellant that even accepting the prosecution case, the case does not fall under Section 302, IPC. According to him the case falls under Sec tion 304, Part II of the IPC as admittedly the incident took place just at the spur of the moment and the same was not pre planned. The learned Counsel for the ap pellant contended that according to the prosecution case itself, there was neither any pre-planning nor the accused had come prepared to kill Bhola Nath or anybody else. According to the prosecution case Kalu Ram was irrigating his field from the previous evening and the accused diverted the water towards his field only in the next morning at about 8. 00 a. m. and then at that time some altercation took place but the accused did neither attack him nor caused any injury to any one. It is not disputed that the house of the accused lies just near the house of the complainant and in between the field and the house of the accused, there is the house of the complainant. These facts clearly show that the accused was returning towords his house and was passing through the door of the house of the complainant. It is not disputed that the house of the accused lies just near the house of the complainant and in between the field and the house of the accused, there is the house of the complainant. These facts clearly show that the accused was returning towords his house and was passing through the door of the house of the complainant. It is further pointed out that Bhola Nath raised objection and told the accused that it was not proper to divert the water and abuse the complainant and others. It is also pointed out that the prosecution case further is that on this some alter cation look place and due to this Chhoiey Lal became in furiated and gave one sickle blow to Bhola Nalh. It is further pointed out that the accused did not repeat the blow but unfor tunately the blow given by the accused proved fatal. We find force in this conten tion. Apart from the facts mentioned above, in the report itself it is alleged that Chhotey Lal due to altercation bacame infuriated and caused sickle blow to Bhola Nath. The relevant portion of the FIR runs as follows: "isi BEECH CHHOTEY LAL GUSSEY MAIN AAKAR HAATH MAIN LIVE HUYE HASIYA SE KHINCH KAR BHOLA NATH PAR MARA". PW-1 Ram Dular reiterated the above mentioned stand in his examination-in-chief. The relevant portion of his state ment runs as follows: "jab BHOLA NATH AUR CHHOTEY LAL SAY BAATCHIT HO RAHI THI TO CHHOTEY LAL NAY GUSSEY MAIN AAKAR HASIYA SEY BHOLA NATH PAR WAAR KIYA. " It is also stated by the prosecution that the accused was cutting the mustard plants by the sickle and, therefore, this sickle was with him and he was not armed with any other weapon. The case of the prosecution that the incident took place suddenly between him and Bhola Nath. In these circumstances, in our opinion, the case will not fall under Section 302, IPC. As pointed out above the incident preceded with an altercation and the ac cused acied suddenly at the spur of the moment without any premeditation and without any previous ill-will, or animosity therefore, in our opinion, the case falls under Section 304, Part II, IPC. 12. As pointed out above the incident preceded with an altercation and the ac cused acied suddenly at the spur of the moment without any premeditation and without any previous ill-will, or animosity therefore, in our opinion, the case falls under Section 304, Part II, IPC. 12. The Honble Supreme Court of India in similar circumstances in the case of Khanjan Pal v. State of U. P. 1991 SCC (Crl)144:1991 JIC 202 (SC), took the view that if the incident takes place at the spur of the moment and if due to sudden quarrel and heat of passion the accused gave only one knife blow which caused the death of the deceased, then the case will fall under Exception 4 of Section 300, IPC and the accused is liable to be convicted under Section 304, Part II of the IPC. The facts of the present case are similar to the case referred to above. In the instant case it is proved that there was no preparation nor there was any pre-meditation and the quarrel had just started due to diversion of the water from the field of the complainant towards his field and the incident took place at the spur of the moment due to heat generated by the altercation between the deceased and the accused. Therefore, in our opinion, the present case falls under Section 304, Part II of the IPC and hence the sentence of Five Years Rigorous Imprisonment will meet the ends of justice. 13. In the result the appeal is partly allowed and the conviction and sentence awarded to the appellant by the Court below under Section 302, IPC are set aside and the appellant is convicted under Sec tion 304, Part II of the Indian Penal Code and is sentenced to under go Rigorous Im prisonment for Five Years. The appellant is in Jail. He shall serve out the sentence awarded to him. Appeal parity allowed. .