N. P. SINGH, J. ( 1 ) THIS appeal is directed against the conviction of the accused appellant No. 1 Rajesh for an offence punishable under Section 302 of the Indian Penal Code for having committed murder of Chakresh and sentence of R. I. for life therefore and conviction of accused appellant No. 2 Sudhir under Section 324 of the Indian Penal Code and sentence of R. I. for three months and fine of Rs. 1,000/- in default R. I. for one month for causing hurt to Chakresh with knife in S. T. No. 221/91 of the Court of Sessions Judge. Narsinghpur, by judgment dated 5-3-1992. ( 2 ) THE prosecution case stated in brief is that complainant-Ramkumar (P. W. 1) has a shop at Karakbel. Acquitted co-accused Bhagchand father of the appellant No. 1 had taken the shop of complainant Ramkumar on rent at Karakbel and he used to carry on his cloth shop there. The complainant Ramkumar wanted him to vacate the shop and Bhagchand had promised to vacate the same a month prior to Diwali of the year 1991. However, Bhagchand did not keep his promise and did not vacate the shop. Therefore, two days prior to the incident i. e. on 12-11-1991 deceased Chakresh had again reminded Bhagchand to vacate the shop, upon which Bhagchand had extended threat to them. On the date of incident i. e. on 14-11-1991 while complainant Ramkumar alongwith his brother deceased Chakresh were standing in front of the shop of one Mukesh Jam. Bhagchand passed that way and the complainant Ramkumar and his brother deceased Chakresh again asked him to vacate the shop. Thereafter accused/appellants as also co-accused Bhagchand. Gyanchand and Anil came there and surrounded the deceased. Bhagchand insist them, to assault upon which appellant No. 1 took out a knife and assaulted Chakresh on his chest and thereafter, appellant No. 2 also assaulted him with a knife on his chin. Deceased Chakresh fell down and while he was being taken to Narsinghpur, he died on the way. ( 3 ) P. W. 1 Ramkumar lodged F. I. R. (Ex. P-1) of the incident at P. S. Themi at about 6. 20 p. m. on the same day on the basis of which the offence was registered and the investigation proceeded. After preparation of panchnama of the dead body of Chakresh he was sent for post mortem examination. Dr. P-1) of the incident at P. S. Themi at about 6. 20 p. m. on the same day on the basis of which the offence was registered and the investigation proceeded. After preparation of panchnama of the dead body of Chakresh he was sent for post mortem examination. Dr. Deepak Tignath (P. W. 4) had conducted post mortem examination on the dead body and found as per report Ex. P-S there was: i. Stab wound on the chest communicating to thoracic cavity over left 4th intercostal space obliquely cutting cartileges muscles. ii. Abrasion 2 cm. x 1 cm. on left mendible. iii. Abrasion 2 cm. x 1/2 cm. be low chin. In the opinion of the doctor, cause of death was haemorrhage and shock due to stab injury to heart. He has also opined that the injuries were sufficient to cause death in the ordinary course of nature. After completion of usual formalities during investigation the chargesheet was filed against the appellant and co-accused. ( 4 ) THE trial Court by the impugned judgment has acquitted the coaccused Gyanchand. Bhagchand and Anil. However, the accused/appellants have been convicted and sentenced as has been mentioned earlier. ( 5 ) THE prosecution examined in all five witnesses at the trial out of whom P. W. 1 Ramkumar. P. W. 2 Manoj Kumar and P. W. 3 Rajendra Kumar are eyewitnesses to the occurrence while P. W. 4 Dr. Deepak Tignath had conducted the autopsy on the dead body of the deceased and P. W. S Rameshwar Rao is the Investigating Officer of this case. As against that the defence examined three defence witnesses. D. W. 1 Dr. Ramkumar Verma, who had examined the appellant Rajesh. D. W. 2 Madan Singh who alleges to be the eyewitness to the occurrence and D. W. 3 Sewakram. ( 6 ) THE defence of the accused! appellant Rajesh was that the complainant had got the electricity of the shop of the appellants disconnected due to which there was altercation during which the incident took place. The accused/appellant Sudhir has raised a plea of alibi in his defence and has stated that he was not present at the place of incident and was at his shop at Themi. The accused/appellant Sudhir has raised a plea of alibi in his defence and has stated that he was not present at the place of incident and was at his shop at Themi. ( 7 ) COMPLAINANT Ramkumar (P. W. 1) narrating the incident has stated that while he and the deceased Chakresh were in front of the shop of Mukesh Jam the accused-appellants came there and on the incitement by Bhagchand. accused-appellant No. 1 Rajesh inflicted a knife blow on the chest of the deceased while appellant No. 2 Sudhir inflicted knife blow near his chin. His statement has been supported by P. W. 2 Manoj Kumar and P. W. 3 Rajendra Kumar Jam. ( 8 ) LEARNED counsel for the appellant has mainly urged that so far as accused/appellant No. 2 Sudhir is concerned, it had been stated by the prosecution witnesses that he caused injury to deceased Chakresh. However. Dr. Deepak Tignath (P. W. 4) stated that the injuries on the chin of deceased could not have been caused by knife. Therefore, it has been urged that the accused-appellant No. 2 cannot be said to have caused the injury and the statement of the complainant Ramkumar and the alleged eyewitnesses P. W. 2 Manoj Kumar and P. W. 3 Rajendra Kumar Jam cannot be believed. In view of the above inconsistency between the occular and medical evidence the oral evidence in this regard does not deserve to be believed. Therefore, the charge of causing injury by knife does not stand proved beyond reasonable doubt against accused/appellant No. 2 and the appeal of accused/appellant No. 2. therefore deserves to be allowed. ( 9 ) NOW, so far as appellant No. 1 is concerned, the complainant Ramkumar and other eyewitnesses have stated that the incident took place in front of the shop of Mukesh. Learned counsel for the appellants have mainly urged in this connection that the dispute between the parties was regarding non-vacating of the shop by Bhagchand. Therefore, it has been urged that the aggrieved party was the complainant. In view of this, there was no occasion for the appellants or other co-accused to have come prepared and to have assaulted the deceased as has been stated by the prosecution. Therefore, it has been urged that the aggrieved party was the complainant. In view of this, there was no occasion for the appellants or other co-accused to have come prepared and to have assaulted the deceased as has been stated by the prosecution. He has also submitted in this connection, that in fact on the date of incident the complainant and the deceased had gone to the shop of Bhagchand and disconnected the electric connection of the shop on account of which an the altercation and the quarrel took place in which the accused-appellant No. 1 assaulted the deceased. It has further been urged that the above defence is established from the fact that no blood stains were found from the alleged place of occurrence that is from in front of the shop of the Mukesh as is admitted by the 1. 0. Rameshwar Rao (P. W. 5) in para 8 of his statement. It has also been urged that even the complainant Ramkumar (P. W. 1) has admitted in his statement in para 17 that the electric connection of his shop was disconnected though he has tried to state that it was disconnected six to seven months prior to the incident, which the learned counsel for the appellant has urged cannot be believed on the face of it as no shopkeeper would be able to run the shop for 6, 7 months without electric connection. Therefore, the defence of appellant/accused No. 1, deserves to be accepted that the complainant had disconnected the electric connection on the date of incident. ( 10 ) IN view of the circumstances of the case, that no blood stains were found at the alleged place of occurrence i. e. from in front of the shop of Mukesh and there was no cause for the accused to have picked up quarrel on the date of incident unprovoked and the electric connection, appears to have been disconnected from the shop of the accused on the date of incident due to which the accused/appellant No. 1 assaulted the deceased. ( 11 ) THEREFORE, it appears that the appellant No. 1 Rajesh had assaulted the deceased on his chest with knife resulting in injury found by Dr. Tignath (P. W. 4) but the above injury was caused during sudden quarrel admitted above. It also appears that only a single blow was dealt with by the appellant No. 1. ( 11 ) THEREFORE, it appears that the appellant No. 1 Rajesh had assaulted the deceased on his chest with knife resulting in injury found by Dr. Tignath (P. W. 4) but the above injury was caused during sudden quarrel admitted above. It also appears that only a single blow was dealt with by the appellant No. 1. In view of the above the act of assaulting the deceased resulting in his death by accused/appellant No. , 1 covered by Exception 4 of Section 300 I. P. C. Thus, though offence punishable under Section 302 of I. P. C. , is not made out against accused/appellant No. 1, but offence punishable under Section 302 Part I, I. P. C. is proved beyond reasonable doubt against him. We held accordingly. ( 12 ) THEREFORE, the appeal so far as the appellant No. 1 is concerned, is partly allowed and his conviction and sentence for offence punishable under Section 302 I. P. C. is altered into one punishable under Section 304 Part I I. P. C. for which he is sentenced to undergo R. I. for ten years. The appeal of accused-appellant No. 2 is allowed. His conviction and sentence under Section 324 I. P. C. is set aside and he is acquitted. Fine if already deposited by him be refunded. Appeal allowed partly. .